Law Review: The Justice and Security Bill

Attempts to uphold the right to a fair hearing, it could be argued, is threatened by the challenge faced by various governments to maintain national security whilst upholding the rule of law. The United Kingdom government intends to allow ‘closed material procedures’[1] in order for evidence to be heard in secret. The bill seeks to amend[2]  current legislation[3] relating to proceedings of the court where the defendant must face trial by a judge and jury, which is one of the most fundamental aspects of a fair and open hearing where justice is seen to be done.

Another major issue with the Justice and Security Bill which the government seeks to enact is that the Secretary of State for the Home Department may seek to make an application to the court in order to bring about a closed hearing. This undermines the fair operation of the civil justice system[4] whereby evidence can be cross-examined as well as calling evidence themselves. Surely it would be fairer for a judge to decide whether or not there should be closed proceedings rather than the Secretary of State. This bill[5] would cause huge controversy if it were to allow a minister of state the power to make such a decision. The human rights charity, Liberty, describe part 2 of the Justice and Security Bill as ‘unnecessary and corrosive[6]’ and support the removal of certain clauses relating to the holding of secret hearings ‘to prevent severe damage being done to the British justice system.’[7] This proposal may, however, not necessarily breach Article 6 of the convention as the European Court will allow a margin of appreciation, enabling individual states to effectively combat threats to their national security, according to Liberty[8] however, the Justice and Security Bill is incompatible with the right to a fair trial under Article 6 of the Convention because it clearly breaches the minimal right for the defendant to have knowledge of the charges and the evidence against him[9].

 

The problem is however, that the state can legislate on secret hearings easily due to the unwritten constitution of the UK, and courts may only declare the incompatibility[10] with the Convention on Human Rights and not declare the provisions as invalid. The state therefore can exercise an enormous amount of power, such as the power to be bestowed upon the Secretary of State if the Bill[11] were to be enacted, where it should be for the courts to protect human rights under the Convention. Since 2001, governments in Canada and the United Kingdom appear to have increasingly sought to use secret evidence against individuals suspected of being a security threat.[12] In Canada, for example, the executive, with the approval of the court, may call upon a witness to testify against the defendant on oath in a secret investigative hearing[13] and furthermore, the Attorney General in Canada may block the release of any ‘sensitive’ material in proceedings which could consequently harm national security.[14]  Secrecy is a source of contradiction in a democratic state[15] because although it is paramount for the state to ensure the security of the people, it prevents the people from making informed choices about how they wish to see their country governed. The weakness of the use of secret evidence is the dependence that the judiciary then have on the executive and the dynamic of closed hearings that seems to favour the security interest.[16] This approach is questionable; any person whom the government feels is a threat to national security could face a closed hearing, without knowledge of the evidence against him. It does seem however, that the European Court of Human Rights acts as a safeguard against any unfairness to which the Qatada[17] case is a perfect example, the evidence against him was heard in closed proceedings and he was deemed to be a threat to national security, however, the possible infringement of his right to a fair trial resulted in the UK government losing their case in the Court.

One of the most fundamental questions relating to the protection under Article 6 of the Convention is whether it is safe to convict a suspect on evidence which he cannot question or cross examine. The minimal guarantee under Article 6(3)(d)[18] makes clear that the source of the evidence must be cross examined in court in stating that;

 

‘Everyone charged with a criminal offence has the right to examine or have examined witnesses against him…’[19]

 

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[1] Justice and Security Bill, part 2

[2] Justice and Security Bill, Clause 6

[3] S69, Senior Courts Act 1981

[4] The Law Society, Secret courts plans: government concessions don't go far enough, says Law Society (http://www.lawsociety.org.uk/news/press-releases/secret-courts-plans--government-concessions-don-t-go-far-enough,-says-law-society/  (accessed April 2013)

[5] Justice and Security Bill

[6] Liberty’ Liberty’s Report stage briefing on Part 2 of the Justice and Security Bill in the House of Lords http://www.liberty-human-rights.org.uk/pdfs/policy12/liberty-s-report-stage-briefing-part-2-justice-security-bill-hol-nov-2012-.pdf (accessed April 2013) Page 3

[7] I.b.i.d Page 3

[8] I.b.i.d Page 17

[9] Vanjak v Croatia (2010) Jan 14 App No. 29889/04 at [52].

[10] S4, Human Rights Act 1998

[11] Justice and Security Bill

[12] Gus Van Harten, Weaknesses of Adjudication in the Face of Secret Evidence (International Journal of Evidence and Proof, 2009) Page 1

[13] The Criminal Code of Canada 1985 (As amended in 2001)

[14] S38, Canada Evidence Act 1985 (As amended in 2001)

[15] Gus Van Harten (n 263) page 1

[16] I.b.i.d page 11

[17] [2012] 8139/09

[18] European Convention of Human Rights

[19] Article 6(3)(d), European Convention of Human Rights