The
system of special advocates used in the UK is probably not compliant with Article 6
of the ECHR. It is, however, at least better than nothing, as was
noted in Roberts. There are several possible Article 6
objections to the special advocate system: firstly, Article 6
entitles a person to a fair and public hearing, and although it is
allowed that the press and public may be excluded from the
proceedings in the interest of national security, it nowhere says the
parties may (possibly because of the inherent injustice of such an
idea). Secondly, there is a shocking discrepancy between the rights
of those who are charged with a criminal offence as stated in Article
6, and the rights of those who are merely suspected of being involved
in terrorism-related activities, without having actually been
convicted of a crime. A person charged with a criminal offence has
the minimum
rights of being informed of the nature and cause of the accusation,
the right to a defence in person or through legal assistance, and the
right to examine witnesses, all of which are denied to the terrorism
suspect, who has not in fact been charged with anything.
It
is true that the European Court of Human Rights at Strasbourg has not
condemned the special advocate system, but the most that can be said
is that they have perhaps tacitly approved it be references to
procedures that respected both legitimate security concerns and due
process in Chahal. There
has, however, been a HRA challenge to the procedure from within the
UK in Re MB. Firstly,
the High Court said the special advocates procedure wasn't a fair
hearing, then the Court of Appeal said it was fair enough because
full disclosure wasn't required by Article 6, then the House of Lords
accepted that it might not be fair in some cases. This shows, if
nothing else, that the issue is very much open to question. In A
and others v UK Strasbourg said
the special advocate system and the use of closed material was an Art
5(4) breach, which is very closely linked to Art 6.
But firstly, what is the special
advocate procedure? This is necessary to briefly examine because it
is the mechanisms of the procedure that show that the Art 6 rights of
the appellant/controlee are not being adequately protected.
Where the case against someone
contains information that cannot be disclosed to them without
potentially endangering national security, or a non-derogating
control order which restricts someone's freedoms because they are
believed to be involved in terrorist activity, the court will appoint
them a special advocate. This special advocate has access to all of
the closed information, but once they have seen this information the
communication between the advocate and the person they represent is
extremely limited. The advocate can apply for permission to
communicate with the person they are representing, but the Secretary
of State must be notified and they can refuse permission. John Ip
found that advocates rarely used this procedure. Secondly, if the
appellant/controlee wishes to communicate with the advocate, they can
do so, but unilaterally, and in writing.
The
Court of Appeal's justification in Re MB
was that full disclosure to the appellant/controlee wasn't required
as long as adequate procedural safeguards were in place to prevent
prejudice. This is not an acceptable justification, as the House of
Lords tentatively recognised, because the special advocates procedure
does not allow communication between the advocate and the
appellant/controlee after they have seen the closed material. If the
substance of the case against you is in the closed material, and you
cannot communicate with your representative, that's not a lack of
full disclosure, that's a lack of any disclosure. If you don't know
the case against you, and your advocate doesn't know you, the
likelihood of you being adequately represented is minimal. Indeed,
there was only one successful appeal under the UTCSA procedure that
originally introduced special advocates.
It
would seem, then, that the procedure could be improved somewhat by
allowing communication between the special advocate and the person
they represent. This does raise some concerns about ethical issues,
as it brings the position of the special advocate closer to that of
the traditional legal representative. What would the situation be if
the appellant/controlee disclosed information prejudicial to their
case? Boon and Nash suggest this could be dealt with by introducing a
professional code of practice, which although potentially costly
could be a sensible solution. Other objections might argue that if
the lawyer is communicating with a suspected terrorist they risk
disclosing the information, but this is nonsensical, as special
advocates are experienced and security cleared lawyers. It should
also be noted that normal security officers are capable of
questioning suspects without disclosing important details through the
use of oblique questioning, and there seems to be no reason why
special advocates would not be at least equally capable.
There is also a
further, overarching Article 6 problem, potentially. Given that
special advocate procedures apply to civil proceedings, Article 6
gives the right to an independent and impartial tribunal. The
Secretary of State assessing someone's involvement in
terrorism-related activities on the broad grounds in the Prevention
of Terrorism Act 2005 is an executive action, not a judicial one, and
thus not an independent and impartial tribunal. The courts have
reasoned this away, as they have in other cases, by arguing that
Article 6 applies to the overall fairness of the system, and because
there is a right of appeal, it is not breached. Although this may be
acceptable in normal criminal proceedings, where the person in
question is already having to try to defend themselves in a situation
where they may well not know the body of the case against them, it is
a step too far away from justice to refuse them an independent and
impartial tribunal as well.
It was a step in the
right direction that in AF the
House of Lords recognised the need for the parties to have
'sufficient information' to direct their special advocate, but it is
hard to see how this will be possible without greater disclosure or
provision for communication. A report from the Joint Committee on
Human Rights indicates that the government is still extremely
unwilling to disclose any more information than the minimum, taking
an extremely precautionary approach. The government has also
attempted to distinguish the context of the case, as in
Tariq, so that closed material
can continue to be used in other situations. The Joint Committee on
Human Rights noted this, and strongly urged the government to
reconsider the implications of the procedure in the light of A
v UK in a comprehensive review
of the system. Legislative reform has effectively renamed control
orders, now terrorism prevention and investigation measures, and has
made some express provision for Art 6, but the special advocate
system is still in place, and it is up to courts and government
lawyers to decide what sufficient information is.
It seems then, that the
special advocate procedure in fact breaches Article 6 of the ECHR in
multiple ways. Although it is admittedly better to have some
representation than none, the system remains manifestly unfair
because of the lack of communication allowed between the special
advocate and the person they represent. This at the very least should
be relaxed. There is some concern to be had over the increased use of
the special advocates procedure at common law. Public interest
immunity is a preferable method, as it involves the court weighing
the benefit of disclosure against the value of secrecy, rather than
it being automatically a closed hearing. There are also broader
considerations about the entire process: the fact that non-derogating
control orders are really of such a degree in many cases that they
are in fact derogating from Art 5 (as the Supreme Court), but they
are much easier to impose. The fact is that the special advocate
procedure's justice is shaky at best, and it is used in cases where a
person's most fundamental freedoms are at stake.
Any alternative approaches to this sticky sticky problem would be wonderful. I've yet to formulate anything particularly good, although I keep trying.
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