David wrote in the Daily Mail, condemning the government’s proposals to hugely extend the scope of ‘secret justice’ far beyond terrorist cases to civil trials.
The full article can be found below:
A regime of secret courts and hidden judgments. Lawyers forbidden from seeing their clients. Defendants not even told the evidence against them, let alone allowed to challenge it. Rules which state that when the government is sued, the government also decides what evidence the court gets to see.
In Britain, the nation which gave the world Magna Carta, we associate these sort of fundamental failures of justice with despotic, one-party states such as Syria, Iran and North Korea. They are also exactly what the Coalition Government could let happen in Britain if its new justice and security proposals become law.
Cast your mind back to 2005. That year, Labour introduced the now-infamous control orders. These imposed house arrest on terror suspects who lived in Britain but could not be deported.
Secret courts were set up to deal with these suspects. Cases were heard in such secrecy that the accused were banned from the courtroom where their fate was decided. Even their lawyers were kept in the dark. Legal representation was provided by government-approved lawyers known as special advocates – who the suspects would almost certainly never meet.
Since then, the Labour government has gone, and control orders have been renamed TPIMs – terrorist prevention and investigation measures – but secret justice survives.
‘Who cares?’ you might think. After all, these measures will only ever affect a handful of terror suspects who would otherwise blow themselves up on the Tube at the first opportunity, right?
In a move which should appall all those who value our traditional civil liberties, the Government recently published plans to extend the system of secret courts and Special Advocates – now called ‘closed material procedures’. If these proposals become law, closed material procedures would be legal not just in terrorism cases, but in any civil case where the government claims ‘sensitive information’ is involved.
Just think of the consequences if this secret justice were extended to, say, police inquests.
In the last 15 years these inquests have proved hugely important. The 1999 Macpherson inquiry into Stephen Lawrence’s death revealed institutional racism within the Metropolitan Police. The 2005 de Menezes inquiry exposed the serious communication failures which led to police shooting an innocent Brazilian seven times in the head after mistaking him for a suicide bomber.
And last year the 7/7 inquest heard how, a year before the 2005 London bombings, an MI5 agent clumsily cut a photo of one of the bombers in half before it could be shown to an Al Qaeda supergrass. While these inquests sadly came too late for the victims, their findings (and the public outrage they created) have forced important changes for the better.
What happens next time British soldiers are sent into battle without sufficient body armour, or in dangerous vehicles such as the Snatch Land Rover? Will these inquests be held in secret on national security grounds?
Imagine if secret courts and special advocates had been operating 15 years ago. The Macpherson, Menezes and 7/7 inquiries would have taken place behind closed doors, their findings concealed for ‘national security’ reasons. Sadly, this is no idle speculation. In private police chiefs admit they want to use closed material procedures at the earliest possible opportunity.
It is not just the expansion of secret justice which is so alarming. The Government’s proposals would also change the rules on secret evidence.
At present, if a case involves sensitive information a minister asks a judge for permission to keep those documents confidential. The judge looks at the evidence and makes a decision which balances national security with the interests of justice.
This system – known as public interest immunity – has served British justice well for decades. The proof? No government, including this one, can point to a single court judgment which has undermined national security.
Despite this, the Government now wants to sidestep judges and give the Home Secretary the final say. This is a dangerous development. In court cases involving secret evidence, the Government is often one of the parties in that case. It is therefore completely inappropriate to let a government minister decide which documents can be shown in court. It would be like letting Stephen Lawrence’s killers choose what evidence the jury could see in their own murder trial.
The Government argues that public interest immunity is unfair because sensitive information can be excluded from proceedings. It says it is fairer for judges to read all the evidence in private than to hear most of the evidence in public. As an argument it is deceptively appealing, but fatally flawed. Evidence heard in secret cannot be challenged. Inconsistencies cannot be spotted. Witnesses cannot be cross-examined. Under these conditions, evidence is not worth the paper it’s written on.
As well as breaching basic rules of justice, letting ministers choose what evidence the judge sees could see them playing politics with justice – claiming information is ‘sensitive’ when really it is just embarrassing to the Government.
Sadly, this cannot be dismissed as a wild conspiracy theory. It has already happened.
Take the case of Binyam Mohamed, the British citizen held in Guantanamo Bay for five years. In 2009 his lawyers asked to see confidential documents about his treatment by U.S. authorities. The Labour government refused. The High Court ordered it to release the information. It appealed, claiming this would harm national security. When the Court of Appeal finally forced it to disclose the secret evidence, it contained not one word of sensitive information; just embarrassing details of government complicity in torture.
This is not an isolated example.
In another case, government lawyers looking to impose a control order on a suspect blacked out sections of confidential documents which showed the control order would actually be illegal in the circumstances. Under the veil of national security, government lawyers had quite literally covered up evidence that did not suit them.
Of course this will come as no surprise to the 69 special advocates who work in this secret justice system. They know its flaws only too well. That 59 of them have condemned these proposals tells you everything you need to know.
Such secrecy also means that crucial mistakes can be missed, potentially allowing miscarriages of justice to go unnoticed.
For example, in one control order case the suspect was accused of entering Britain using a fake passport at a specific date, time and place.
Not long afterwards, exactly the same evidence was used against a different suspect in another, totally unrelated case. It was only by lucky coincidence (the same special advocate was acting in both cases) that the mistake was spotted.
On a different day the second suspect could have been placed under a control order on the basis of totally irrelevant evidence. In a public court the chances of this happening are small, since the suspect could see the evidence against him and challenge it in court.
However, in closed material procedures the suspect cannot see the evidence at all, so he cannot challenge it, and the special advocates who can see the secret evidence cannot speak to the suspect about it. This is a recipe for terrible injustice.
Of course it is not in the public interest for top-secret information about our secret services to be available for all to see. But nor is it in the public interest to allow clumsy cover-ups in the name of ‘national security’. That is why secret courts must be rejected. If we are to have any hope of maintaining trust in our ministers, judges and courts, justice must not only be done, it must be seen to be done.
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