Legal Brief: Breaking the Sound of Silence
23 March 2012 | By Christian Metcalfe
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The gnashing of teeth was all that could be heard last week at an all party parliamentary meeting titled ’Secret evidence, justice denied?’ looking at Ken Clarke’s Justice and Security Green Paper.
Legal experts, pressure groups and journalists tore into the paper’s case for secret hearings and were unanimous in their view that secret evidence means justice is denied.
The premise is this: the Justice and Security Green Paper wants to expand the use of secret evidence in civil litigation, allowing the Secretary of State to trigger a closed material procedure (CMP) in any hearing where they consider that disclosure of sensitive material could cause damage to the public interest.
It is unsurprising that special advocates, experienced inquest lawyers and journalists meticulously dismantled the semantics of the paper - such as the deliberately vague definition of ’public interest’. But by also rejecting what they termed the “bogus” reasoning on which the proposals are based, they showed their bite is just as bad as their bark.
Currently CMPs are controversially used in a very small number of niche proceedings such as deportation orders, usually on national security grounds. They exclude the press, the public, the claimant and their lawyer.
Martin Chamberlain, a special advocate at Brick Court Chambers, warned that the green paper risked undermining public faith in the “fundamentally British concept” of a decision-making process that is fair and transparent. He said a striking feature of the justice system is how much the court’s verdict is respected - but that this would be lost.
The former Director of Public Prosecutions (DPP) Lord Ken Macdonald QC of Matrix Chambers then led the pack across the Atlantic, savaging the US influence on the Government’s “completely disproportionate” agenda.
The embarrassment from both countries over the torture of British citizen Binyam Mohammed at Guantanamo Bay has triggered a knee-jerk over-reaction, Macdonald said.
“When I was the DPP we had serious run-ins with the justice department over where terrorists were tried,” he said. “The UK came under enormous pressure and there were extremely heated discussions where the US said the relationship would be different. It never was. We had our fights and dusted ourselves down. We rely on each other. Our intelligence is closer than any other country. Their threats ring hollow.
“This is an audacious attack on our justice system. This is a shocking response to the Binyam Mohammed case to shut down part of our justice system rather than makesure it doesn’t happen again.”
Doughty Street Chambers specialist inquest barrister Henrietta Hill, who has appeared at high-profile inquests including those into the shooting of Jean Charles de Menezes and Princess Diana hearings, which would have been closed under the new legislation, said “In my experience, when gifted orators debate law, open justice and fairness, it is often those without a voice that are forgotten - the victims and their relatives.”
Hill made a strong case that if the proposals went ahead families of people killed in war, terrorism, or botched police operations would never know the truth and that existing powers of the “archaic system” are more than enough to protect national security interests.
Hill said that lessons learned from the “most sensitive” 7/7 London bombings inquest have made the nation safer. She summarised: “There’s no business case for it.”
As the consultation period is now closed, this growling pack of open justice attack dogs looks set to get louder in the run up to the publication of the white paper in May.