Judgments issued in England and Wales after “closed material procedures” (“CMP”) are now to be made part of a database, according to a Practice Direction issued by the Lord Chief Justice and the Senior President of Tribunals. Prior to this Practice Direction such judgments were held by a variety of courts, tribunals and government agencies.
A single printed copy and an electronic copy of each closed judgment must be lodged with the Royal Courts of Justice Senior Information Officer within 14 days of being handed down, for “consideration for inclusion” in the database, to be known by the disturbing and poetic title “the library of closed judgments”. The database will also include secret judgments from the last five years, as well as certain older judgments.
The printed and electronic judgments will be maintained under the secure handling provisions set down in unpublished 2017 guidance. Not all judgments will be retained, and some will be “disposed of securely”. The decision making process by which judgments are retained or destroyed is not public knowledge.
The database will be accessible by senior judges and “special advocates” with security clearance.
WHAT ARE CLOSED MATERIAL PROCEDURES, AND WHO ARE SPECIAL ADVOCATES?
CMP allow for all or part of a claim to be heard in closed proceedings in order for the judge to consider material which, if disclosed publicly, would risk harming national security.
These hearings exclude the claimant, who is represented by a government-approved “special advocate” who is unable to communicate the content of any sensitive material to her client.
This has, for example, allowed the government to avoid disclosing evidence to claimants who allege that they are survivors of government-sanctioned illegal rendition to torture-practicing states. This is despite the fact that the court could rely on that evidence in the determination of the facts and outcome of their claim (see, for example, Belhaj and Boudchar v Director of Public Prosecutions (Foreign Secretary intervening) 2017).
A SHORT HISTORY OF CLOSED MATERIAL PROCEDURES
The introduction of CMP followed the European Court of Human Rights’ 1996 decision in Chahal v United Kingdom. The Court held that a previous procedure employed in cases involving national security matters unlawfully violated the rights of the claimant. However, the Court suggested a CMP-like Canadian procedure as a compromise. The government ran with this suggestion, introducing the Special Immigration Appeals Commission Act 1997 which allowed for CMP to be used in certain immigration appeals.
Since then, the use of CMP has proliferated in a number of different areas of law, including financial regulation (Bank Mellat v HM Treasury 2014), employment law (Kiani v Secretary of State for the Home Department 2016) and preventive detention (A v Secretary of State for the Home Department 2004). There is even some evidence of leakage of the procedure into criminal law, with entire trials being held in private, away from public scrutiny (Guardian News and Media Ltd v R & Erol Incedal 2016).
WHAT’S THE PROBLEM WITH CLOSED MATERIAL PROCEDURES?
CMP mark a major divergence from the principles of fairness and transparency that are foundational to our justice system. Not only do they challenge individualistic notions of fair trials, but they are also contrary to common law values of open justice, which include public access to the courts and the freedom of the media to scrutinise the judicial process.
Nonetheless, the use of CMP has been sanctioned by the European Court of Human Rights (see, for example, A v UK 2009), so long as the difficulties caused to the applicant by the use of CMP are counterbalanced in such a way as to enable the applicant to “effectively challenge” the allegations against her.
IS THE DATABASE A GOOD THING?
Relatively speaking, the introduction of the database will be of benefit to the justice system, alleviating to some extent the problem secret advocates have faced of developing lines of argument, only to find upon their delivery in court that such arguments have been decided upon in previous CMP cases. With access to the database, secret advocates will now know the rationale of previous judgments, enabling them to more effectively defend the rights of their clients.
However, the database is incapable of addressing the more fundamental problems of the CMP model, in its erosion of our procedural rights and the ability of the public to oversee the administration of justice. In its weakening of our institutions of justice, CMP should not only concern those involved in cases where sensitive evidence is admitted but society as a whole.
Freedom of Dissenters 