The Use of Closed Material Procedures in National Security Matters - Term Paper Example

?The Use of Closed Material Procedures (CMPs) in National Security Matters Closed Material Procedures (CMPs) encompass the appointment of “Special Advocates” where any “relevant material” related to a case, which may “harm public interest” can still be used instead of excluding it from the proceedings.1 The purpose of CMP is to facilitate people with adequate “procedural justice” in cases where it may not practically be desirable to disclose specific material or information in public interest.2 The basic principle of criminal justice system is to extend all individuals with an opportunity to defend their cases and to provide them free and fair trials. Thus, the justice system allows individuals to examine all the documents and other information on which the case relies. However, in the recent days, the issue of national security has acquired much significance in view of the ever escalating incidents of terror attacks that are especially directed towards developed nations such as the UK and USA. Thus, courts in many cases, have to deny access of specific documents or information to individuals, from the point of view of public interest. Though such measures have been introduced with the primary objective of safeguarding public interest, the issue of CMP has become a controversial topic due to its far-reaching implication of the criminal justice system as a whole. In normal court proceedings, individuals and their legal representatives are allowed to be present and examine all the documents that are allowed as evidences in a case during the trial and such proceedings are known as open procedure. However, in cases where the examination of any documents by individuals is considered as a breach of national security, individuals are not allowed to examine the relevant document and such materials are known as “closed” materials.3 However, a government appointed lawyer, who represents the individual, or Special Advocate, will be allowed to “attend all parts of” the proceedings and extended access to all the documents examined during the trial.4 This is to ensure that the government preserves a “strong and independent judiciary” to protect the rights and freedom of its citizens.5 On the other hand, the government has a primary responsibility for protecting national security to guarantee the safety and security of the citizens. Thus, it becomes significant that the government strikes a balance between the protection of national security and safeguarding the rights and freedom of individuals. The debate regarding CMPs, thus, focuses its attention on protecting the national security without injuring or compromising the concepts of the freedom of individuals and facilitating them a fair trial. One of the main arguments against CMPs is that the system of suppressing material is “inherently unfair” and that a hearing that disallows individuals from being present or examining the documents “undermines the credibility” of the legal system.6 The opponents of CMPs further argue that the system of allowing the prosecution, usually represented by the government, to “present its case” without extending the defence an opportunity of “public scrutiny” is against the principles of justice.7 They also contend that apart from the inherent risks associated with CMP, it considerably reduces the “degree of judicial and Ministerial scrutiny” of how the cases are tried and this can have a detrimental effect on “transparency and accountability” of justice system as well as compromise its “credibility.”8 Thus, the main argument against CMPs relies on the premise that this practice undermines the concept of fair trial to individuals as in this system they are not allowed to examine all the documents that the prosecution relies on for the purpose of proving their case. It is needless to mention that when a defendant is disallowed the opportunity of viewing a prosecution document, it necessarily pre-empts him or her from properly preparing his or her defence. Thus, this procedure, to a certain extent, erodes the concept of fair trial and it rather becomes a one sided proceedings where the prosecution receives a better opportunity to prove its case. Another argument that the opponents of CMPs have put forth, as can be discerned from the claim of Liberty (The National Council for Civil Liberties), is that the government has not been able to produce any substantial evidence to validate the need for the Justice and Security Bill (Part 2), which introduces a new policy that may undermine the principles of “fair trials and open Justice.”9 They further argue that the proposed amendment forges a situation where a judge’s “hands will be tied,” when the government moves an application for any proceeding to be made as CMP, and it also nullifies the aspect of “judicial discretion.”10 Similarly, Mathew Rowlands contends that the Justice and Security Bill facilitates the leeway for ministers to compel civil courts to hold the proceedings “in secret” and decide cases based on “evidence” that litigants or their advocates do not have an opportunity to verify and “rebut.”11 Thus, it transpires that most of the criticism of the CMPs derives from the fact that the procedure pre-empts the individuals from examining the evidence admitted in a court, which the opponents of the system consider as the erosion of the principles of natural justice in fair trials. In this context, it becomes relevant that Article 6 of the European Convention on Human Rights provides every person with the right of a “fair and public hearing within a reasonable time by an independent and impartial tribunal” for determining his rights or for defending criminal charges against him.12 The article also confers certain rights on individuals among which the most important is the provision of sufficient time, and also “facilities for the preparation of his defence.”13 It further emphasises the obligation on the part of the state to guarantee all accused persons a “free trial” to ensure that no individual is punished without receiving a fair chance for defence.14 In CMPs, neither the defendant nor his legal representative attends the proceedings or receives the opportunity to examine the documents that the prosecution relies on to argue their case. Thus, it becomes a one sided trial where one party receives all the possible facilities to present their case, whereas the other does not receive ample opportunities to refute their case. Therefore, it can be construed that CMPs essentially deny the defendant the opportunity to defend his case and such proceedings compromise the principles of fair trial to the accused. In addition, it gives an upper hand to government authorities to fabricate the proceedings to their favour by misrepresenting the facts relevant to a case. However, when one looks at the issue from the point of view of national security, CMPs seem to be justified especially in view of the terrorist attacks in the recent years that target the developed Western countries such as the UK and the US. It also needs to be understood that in the normal circumstances, trials are conducted in the open court where both parties in a litigation are allowed to examine the evidence produced by the other and the exception to this rule occurs only when “Public Interest Immunity (PII) is invoked” and a party seeks withholding of material information for safeguarding national security.15 Thus, the judge hearing the trial may decide to have the proceedings “in camera” by excluding the public and media from attending the trial.16 On the other hand, CMPs are held in trials where the revealing of any information is considered as a threat to public interest, including national security matters. There is no denial of the fact that the state’s primary responsibility is to safeguard public interest rather than the rights of the individuals. Thus, when public interest is at stake, there seems to be no wrong in withholding information from a defendant in a court hearing. The vehement arguments against CMPs primarily seem to stem from panicky reaction to the situation rather than a matured evaluation and understanding of the implication of the issues based on which the system of CMPs has been introduced. The Justice and Security Bill (Bill No. 99 2012-3), vide its Schedule 1, Paragraph 3, vests the power of refusing “access to material” on a “Minister of the Crown,” which has previously been enjoyed by officials such as the Director General of Security Service, Chief of Intelligence Service etc.17 Thus, it transpires that the bill rather than limiting the rights of public to access material relevant to a case, makes the system more transparent by entrusting the decision on a minister, who has more discretional powers than police officers who may happen to have ulterior motives for withholding information from the public for protecting the members of their forces. Paragraph 3 further “removes” the powers of the heads of various security agencies to “withhold information” and bestows such discretion on the “Secretary of State” in respect of security organisations and on the “Minister of Crown” in respect of other government organisation.18 Thus, it can be reasonably assumed that suppression of information will occur only in cases where the concept of national security will have a chance of being compromised or placed at risk. In order to understand the actual implications of the implementation of CMPs, one has to appreciate the actual process involved in the system and its impacts on the rights of individuals. In CMPs, there is no outright denial of examination of material and it involves the procedural variation where instead of the defendant examining the document or information, the court assigns a Special Advocate to examine it on behalf of the defence. In this context, remarks of the court in the case of A and other Vs UK become relevant. The court has stated that in cases where evidence has been disclosed to a large extent and such information plays a “predominant role in the determination” it cannot be said that the defendant has been “denied an opportunity” to effectively refute the allegations against him.19 The court has further gone on to observe that even in cases where “all or most of the underlying evidence remained undisclosed” the defendant will still be in a position to provide information to the special advocate or any of his other legal representatives to prepare his defence.20 The court has also cited an example, where any alleged terrorist can refute the charge of having undergone training by providing the special advocate with “exonerating evidence” in terms of an alibi, without knowing the source from where the prosecution has received the information about the training.21 In this context, it is also relevant that Justice and Security Bill stipulates a “three-stage process” before deciding to partially or fully conduct a trial under CMP system and it includes a decision by the Secretary of the State under Clause 6 (5), move an application under Clause 6 (1) to the court and the application by a “relevant person” seeking permission to treat “some (or all) of its evidence as closed.”22 Thus, the system obviously strives to make the process transparent for all stakeholders and attempts to eliminate any arbitrary violation of the rights of citizens. The bill further enjoins through the proviso of Clause 6 (3) that while taking decisions on the issue of CMPs, courts “must ignore” cases that deliberately attempt to seek nondisclosure on the pretext of claims about PII.23 In addition, the court exercises the discretion to grant the application only under the circumstances where it feels that any material so disclosed can be “damaging to the interests of national security” as per Clause 7 (1) (c).24 Therefore, it can be construed that CMP system is a “significant improvement” on various proposals contained in the “Green Paper” as can be discerned from the formalities to be adhered before closed proceedings are resorted to.25 Thus, it transpires that the reservations about CMPs derive from an improper understanding of the system and what it actually aspires to achieve. While the protection of the rights of citizens is a major responsibility of a nation, the state envisages a more significant obligation of safeguarding the safety and security of its subjects, for which it has to accord priority to the national security over all other consideration. In the absence of security, the lives of citizens will be at stake and hence there will be no scope for protection of their rights. Besides, under the normal circumstances, before deciding to follow CMP in any case, the court considers the element of “harm to national security” if evidence is disclosed and also that such risks are likely to “outweigh the public interest.”26 In addition, it is also relevant that in the case of a normal citizen, who is defending a case, the chances of nondisclosure are highly unlikely. Courts usually will agree to CMPs in cases that involve people alleged to have engaged in terrorist or disruptive activities. It is needless to say that in such cases, the breach of vital information may have serious negative repercussions on law enforcement as well as national security and as such there is logic in withholding information in those cases. However, while protecting the national security the government also has a responsibility to ensure that citizens in the country receive a fair trial and their rights are protected. Therefore, when implementing CMPs in trials, the courts need to ensure that only in deserving cases where the revelation of any information can be a serious hazard to national security, the recourse of closed hearing is resorted to. Besides, while appointing Special Advocates it must be ensured that they act impartially and without any bias. The judicial system also has to make sure that the individuals are extended full opportunity to defend their case and they are not put to unnecessary hardship in the name of protection of national security. Similarly, the political leadership, while making requests for closed proceedings, should exercise discretion whether such recourse is warranted in the case, and take decisions based on the merits of individual cases rather than using CMPs as a regular practice. There is no doubt that CMPs have been introduced with the intent of safeguarding national security, while ensuring that the rights of individuals are protected and every defendant receives a fair trial. However, to guarantee this and to meet the ends of justice, government officials as well as courts will have to exercise a high level of judiciousness and discretion before determining whether a particular case is to be held under the CMP system or otherwise. Bibliography Analysis UK: Government’s Secret Justice Bill Widely Condemned (Statewatch Journal, Vol.22 No.2/3 2012) accessed 15 April 2013 Article 6: The Right to a Fair Trial (Human Rights Review 2012) accessed 15 April 2013 Bella Sankie & Sophie Farthing, Liberty’s Committee Stage Briefing on Part 2 (Closed Material Procedure) of the Justice and Security Bill in the House of Lords (Liberty 2012). accessed 15 April 2013 Justice and Security Bill: Bill No.99 2012-3 (House of Commons Library 2012) accessed 15 April 2013 Justice and Security Bill [HL]: Report (House of Lords, Select Committee on the Constitution, 2012) accessed 15 April 2013 Justice and Security Bill (Part 2): Closed Material Procedures (JUSTICE 2013) accessed 15 April 2013 Justice and Security Green Paper (HM Government 2011) https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/79293/green-paper_1.pdf> accessed 15 April 2013 Liberty’s Committee Stage Briefing on Part 2 of the Justice & Security Bill in the House of Commons (Liberty 2013) Special Advocates and Closed Material Procedures (House of Commons Library 2012) Read More