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Closed procedures may not be ideal, but in some circumstances they can result in fairer outcomes
The understandably earnest debate about whether the use of closed material procedures (CMP) and special advocates should be extended to civil claims has diverted attention from another question: what benefit can litigants get from such extensions? Experience has shown that the CMP model can result in a fairer trial, where intelligence evidence is in play.
Those of us who act as special advocates in the Special Immigration Appeals Commission are familiar with the process by which sensitive materials must be ‘gisted’ so as to produce redacted versions of documents that set out the substance of the case. This protects the Art.6 ECHR rights of appellants, as well as their Art.5 rights if they are seeking bail. It results in witnesses being called in open who can be asked about the redacted evidence.
In civil cases where there is no statutory provision for a CMP, such materials are dealt with by public interest immunity (PII) applications that are all-or-nothing: if the application succeeds the material is simply not available to be put in evidence, but if it fails the material must be put in the public domain if the case is to continue.
In the Azelle Rodney Inquiry there was a good deal of sensitive intelligence material. The inquiry had to satisfy Art.2 ECHR, which required the participation of the deceased’s family, and also had to allay public concern over a fatal police shooting. Those responsible for the intelligence were bound to claim PII but the inquiry could not discharge its obligations if it applied the all-or-nothing approach.
Although there was no special advocate and no statutory provision for a CMP, a number of counsel had Special Immigration Appeals Commission (SIAC) experience and so adopted the gisting and redaction approach that would have been used in a CMP. The result was that records and witness statements were made public and intelligence officers called to give evidence in open in a way that enabled the deceased’s family and observers to know the substance of the intelligence. Witnesses were cross-examined, subject only to the limitation that no questions were permitted that tended to reveal the sources of the intelligence.
The Supreme Court has made it plain that a judge in a civil claim cannot adopt a CMP unless there is statutory provision. It was fortunate that in the Azelle Rodney Inquiry the main elements of the process could be used without the need for a closed procedure. No doubt that could apply in other inquiries where counsel has sufficient security clearance to see the materials to agree redactions.
The comfort that could be drawn in civil cases where a CMP is used is that, while the claimant will be under the disadvantage of not knowing what is going on in the closed part of the hearing, they will get to see the results of the gisting exercise. And that is a real advantage, giving them a chance to know the thrust of the case against them and challenge witnesses. It is not ideal but it is better than is widely feared.
Ashley Underwood was counsel to the inquiry into the shooting of Azelle Rodney