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

Case Comment: The case of Abu Qatada.

The introduction of the Human Rights Act 1998 has incorporated rights such as the ‘core principle’ of the right to a fair trial which is not a relatively new concept in the United Kingdom but the protection of this right is intended to enshrine the fundamental principle of the rule of law.The right which is protected under article 6 is so fundamentally important in a democratic society. It expresses a fundamental principle of the rule of law and is to be interpreted broadly.The fact that the right to a fair trial is given a broad meaning is effective in the protection of human rights in the UK, although it is difficult to say what Article 6 adds to our law because a right to a fair trial has always been an integral part and therefore some comfort can be taken in the fact that our laws protecting the right to a fair trial shall continue even if they are to a higher standard of protection than under the convention. Individuals under article 6 shall not be punished unless they have committed a crime, before they are punished, it shall be proven and not presumed.



Qatada could not be given a fair trial in Jordan.

One of the most important questions for the United Kingdom as a modern democratic state[1] is how effectively does it protect citizens, in the name of national security, without infringing the rights of those who are suspected of offences of terrorism[2] and whether the operation of the Human Rights Act is in need of reform in order to better protect the rights of those suspected or of those in the wider community. It is the duty of the courts to balance the rights of the individual and the community and in relation to the threat of terrorism; the court must consider the threat faced by society.[3] Under Article 6 of the convention, the individual has the right to know the case against him and he is able to challenge it, however there are situations where the defendant is not allowed to know what the evidence is against him.[4] In the United Kingdom, offences of terrorism have been created where the burden of proof is on the defendant[5] and has created a situation where one is guilty until proven innocent, which seems worryingly contrary to the protection of the presumption of innocence under Article 6[6] To be detained on grounds of suspicion of terrorist activity is a very serious charge, and therefore it seems right that the defendant should be presumed innocent, however the threat of terrorism itself is such a serious issue that disclosing all the evidence to the defendant could threaten national security[7]. The European Court has considered this kind of situation and has found that where the defendant does not see all of the evidence against him, this does not necessarily affect his right to a fair trial[8] so long as there an adequate framework for monitoring decisions made by the court.  The assurance given by the European Court that it is likely to be more fair if it a court, rather than an administrative or executive officer, considers the evidence without the defendant having knowledge of it because the judge will make a fair decision based on all of the evidence.[9] The terrorism legislation also provides for the appointment of a ‘special advocate’ who is able to see the evidence which the defendant cannot and therefore advocate on behalf of the defendant. In this sense, the protection of the fair trial is upheld because the defendant, although not entitled to see all of the evidence, can be represented by somebody arguing on their behalf, cross examining the evidence against the defendant which is an important safeguard in combating the terrorist threat and upholding the principle of human rights protection. The Convention on Human Rights gives people a sense of assurance that the state cannot impose legislation which will simply remove their human rights, the incorporation of Article 6 has given people the right to a fair trial have been used to ensure that the government’s counter-terrorism measures are applied in a human rights compliant way, thus making them more effective[10] and therefore the current operation of human rights legislation should be conserved.

In light of the European Court decision in Chahal[11] that not disclosing evidence to the defendant may not infringe his right under Article 6,[12] and given that the Terrorism Acts do not contain provisions which directly infringe or threaten Article 3,[13] there must be a real temptation on the part of those investigating or attempting to prevent serious terrorist crimes to take such steps.[14] The House of Lords discussed this potential problem in the case of A v Secretary of State for the Home Department[15] in light of terrorist legislation introduced by the state to detain foreign national terrorist suspects.[16] The special Immigration Appeals Commission, by rule 44(1)[17] was able to receive evidence which would not have been admissible in court because the Home Secretary had relied upon evidence obtained from a foreign country known to practice torture[18]. Freedom from torture is one of the most fundamental human rights and must be protected[19] so how could it ever be justified to rely upon evidence obtained through torture in the trial of a terrorist suspect whom has been detained by the state? Before the case was appealed in the House of Lords, Laws LJ stated

‘If the evidence obtained by torture was from abroad, so long as the United Kingdom had neither ‘procured’ nor ‘connived in’ that torture and had no control over those responsible, the Home Secretary could then rely on that evidence[20]’

The judgement by the Court of Appeal amounted to an absurdity[21] because the judges almost asserted that evidence from torture could be used so long as there was no involvement from the UK, but as Neuberger LJ made clear in his dissenting judgement,[22] relying upon evidence which has been obtained by torture still affects the rights of the detained under the Convention. When the case was appealed in the House of Lords,[23] the seven law lords unanimously and wholeheartedly rejected the Court of Appeal’s conclusions.[24] The House of Lords considered that if the evidence obtained through torture would not be admissible in a court of law, then it should be excluded ‘irrespective of where, by whom, or on whose authority the torture was inflicted’[25] and this was the right approach in that the evidence obtained by torture is considered to be unreliable and in no court of the United Kingdom should such evidence be admitted, even if it is true evidence[26] because this can affect the right to a fair trial of the defendant because he is being convicted on unreliable evidence which is cannot be said to be beyond any reasonable doubt. Neuberger LJ had been correct in his dissenting judgement that reliance upon evidence obtained by torture would amount to a breach of Article 6[27] because not only could the evidence be considered unreliable, but the United Kingdom has an obligation under international law[28] to eliminate the practice of torture.[29] With regard to whether there is a need for fundamental reform of the Human Rights Act 1998 in relation to this area, it is clear that for the executive, such court judgements can be frustrating when there is an effort to detain individuals who are truly dangerous to the public, but the protection given by the courts to ensure a fair trial under the Convention is a healthy reflection of a democratic society and in this case, the court made clear that the Home Secretary should have not considered evidence unless it was shown to not have been obtained by torture.[30] However, if the United Kingdom did not incorporate the Convention into domestic law, would the House of Lords have come to the same conclusion? Yes, because the rule of inadmissibility of evidence procured by torture is recognised in the commons law[31] and therefore has developed an exclusionary rule.[32]

In A v Secretary of State for the Home Department[33], the House of Lords based their decision on the constitutional principles rather than the legal rules[34] because the House of Lords, as then the Supreme Court, acts as a ‘constitutional watchdog’[35]  and there to protect the ‘bedrock moral principle’[36] which is the ‘touchstone’ of human and civilised legal systems[37] and although the United Kingdom had not incorporated the provisions under the torture conventions, their lordships thought it so important that it represents a universal rule in which the common law does[38] Although this clearly has not stopped Parliament from implementing laws that extend restrictions on freedom,[39] the domestic courts will always uphold the rule of law, even if upholding the law as it is causes frustration in the relationship between the judiciary and the executive.  It is because of the sometimes frustrated relationship between the executive and the judiciary that the Human Rights Act 1998 is often blamed for administrative decisions that have been caricatured as privileging the rights of criminals and terrorists[40] and remains a controversial piece of legislation blamed for weakening the ‘war’ against terrorism and for early release of criminals.[41]

ECHR rejected SIAC's decision on Qatada and Article 6

 More recently, this view of the Human Rights Act 1998 and possible abolition have arisen as a result of the European Court of Human Rights decision in Othman v United Kingdom[42]  where the Court held that by deporting the defendant back to his home country of Jordan, there would be a ‘flagrant denial of justice’[43] and therefore there would be a breach under Article 6 of the Convention.  The original decision made by the Special Immigration Appeals Commission[44] made clear that they did not believe that Qatada would be denied justice in Jordan and nor did they believe that the evidence that would be used in his retrial would have been obtained through torture of a third party[45]. SIAC[46] also acknowledged that although the court in Jordan was a military court which was known to be impartial, there was no evidence that specific judges would be given specific cases and furthermore, there was no evidence that the court was ‘leaned’[47] on by the state, therefore it could be argued that if Qatada had been deported, his human rights would not be breached in relation to Article 6[48] and he would not be subject to a ‘flagrant denial of justice.’[49] This decision, made by a British court, held that Qatada would be given a fair trial in Jordan and agreed with the case made by the Secretary of State for the Home Department that he posed a threat to national security in the United Kingdom. The European Court of Human Rights, however, have disagreed with the decision made by the Special Immigration Appeals Commission and have blocked his deportation, thus, in the same way the European Court made their decision on prisoner voting,[50] they have prevented the state from deporting somebody who poses a huge threat to national security. It is simply unacceptable that reassurances have been given by the Jordanians to the United Kingdom that Qatada will not be subject to any ill treatment and that he will receive a fair trial, but we still cannot deport a dangerous foreign criminal.[51] Before the case entered the European Court of Human Rights, the Court of Appeal[52] stated that SIAC had misunderstood ‘the fundamental nature in convention law’ of the prohibition of evidence obtained through torture[53] and although the Court of Appeal was in full agreement of just how dangerous Qatada was to national security, the right to a fair trial enshrined under Article 6 of the Convention stands as a universal right for everyone, regardless of whatever offence they have been alleged to have committed. The judgement given by the European Court of Human Rights provides guidance on a number of issues that arise in the context of the deportation of terrorist suspects as it deals with the risk of torture of the defendant and evidence obtained by torture being relied upon in a court of law[54] First of all, it was unclear whether the diplomatic assurances given by Jordan were enough to remove the ‘real risk’ of ill treatment of Qatada,[55] and secondly, whether a signatory to the European Convention could deport a terrorist suspect to a state which is not bound by the provisions in the Convention, in which standards may ‘fall short’[56] of what is required under Article 6.[57] The issues raised by the European Court of Human Rights on the original hearing conducted by SIAC, found that the Appeals Commission issued two judgements, the first was made public and the second submitted to the Secretary of State to the Home Department and the special advocates[58] and also, SIAC heard evidence in both open and closed sessions, which under the anti-terrorism laws[59] would require a special advocate on behalf of Qatada. How could it be argued that Qatada faced a fair trial in the United Kingdom if he was represented by a special advocate whom could not see all of the evidence and was unable to carry out one of the most basic functions in a hearing, that of cross examination. If the evidence was not cross examined and a judgment was submitted to the Secretary of state without being disclosed to the public, then how is it possible for the public to be satisfied that justice is seen to be done? Before the introduction of the anti-terrorism legislation, terrorist suspects were prosecuted as common criminals and in times of emergency, internment has taken suspected terrorists of the streets altogether.[60] The balance must be right in that terrorist suspects such as Qatada receive a fair trial and must be aware of the charges and evidence to be used against him, but the state has a duty to protect the people, hence why evidence is kept from the public domain and hearings held in secret. In the case of Qatada[61], there does not need to be reform in the way of the Human Rights Act 1998 and the incorporation of the European Convention as the ruling, however frustrating for the British government it may be, promotes a healthy dialogue between the judiciary and the executive on how to deal with a danger to national security in a way which is right and fitting for a democratic society.  

 

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[1] I.b.i.d 1259
[2] Defined under s1, Terrorism Act 2000

[3] Per Lord Hope, R v DPP, ex parte Kebilene [2000] 2 AC 326

[4] Hoffman (n 4) page 380

[5] S57 Terrorism Act 2000

[6] European Convention on Human Rights

[7] Hoffman (n 4) page 380

[8] Chahal v United Kingdom [1997] 23 EHRR 413

[9] Hoffman (n 4) page 380

[10] Human Rights Lawyers Association (n 63) page 8

[11] [1997] 23 EHRR 413

[12] European Convention on Human Rights

[13] European Convention on Human Rights

[14] Hoffman (n 4) page 373

[15] A and Others v Secretary of State for the Home Department (No 2) [2005] UKHL 71

[16] S21, 23 Anti-Terrorism, Crime and Security Act 2001

[17] Special Immigration Appeals Commission (Procedure) Rules 2003

[18] Xiaofei Lu, A v Secretary of State for the Home Department (UCL Jurisprudence Review, case comment 2007) page 1

[19] Press Release, UN Secretary-General 2005

www.un.org/News/Press/docs/2001/sgsm7855.doc.htm , accessed March 2013
[20] Per Laws LJ, A and Others v Secretary of State for the Home Department [2004] EWCA Civ 1123 at [252]

[21] Xiaofei Lu (n 208) at page 3

[22] [2004] EWCA Civ 1123, para 467

[23] [2005] UKHL 71

[24] Xiaofei Lu (n 208) page 2

[25] Per Lord Bingham, A and Other v Secretary of State for the Home Department (no 2) [2005] UKHL 71 at [51]

[26] Per Lord Carswell, I.b.i.d at [148]

[27] European Convention on Human Rights

[28] United Nations Convention Against Torture 1984

[29] Deidre M. Dwyer, Closed Evidence, Reasonable Suspicion and Torture: A and Others v Secretary of State for the Home Department (International Journal of Evidence and Proof, 2005 Case Comment) page 2

[30] I.b.i.d page 1

[31] Amrita Mukherjee, Special Immigration Appeals Commission: Admissibility of Evidence Obtained by Torture (Journal of Criminal Law, 2005 Case Comment) page 3

[32] S76, Police and Criminal Evidence Act 1984

[33] [2005] UKHL 71

[34] Xiaofei Lu (n 208) page 3

[35] Sir John Laws, Is the High Court the Guardian of Fundamental Constitutional Rights? [1993] Public Law pp 59-79

[36] [2005] UKHL 71 at [64]

[37] I.b.i.d at [83]

[38] Xiaofei Lu (n 208) page 3

[39] Richard Stone, Civil Liberties and Human Rights (8^th edition OUP)

[40] Wadham, Mountfield, Prochaska and Brown (n 13)

[41] Helen Fenwick and Kevin Kerrigan, Civil Liberties and Human Rights (2011-2012 Routledge) page 229

[42] Othman (Abu Qatada) v United Kingdom [2012] 8139/09.

[43] [2012] 8139/09

[44] [2009] 1 LRC 738 at 751

[45] Othman (Abu Qatada) v United Kingdom [2012] 8139/09 at [46]

[46] Special Immigration Appeals Commission

[47] Othman (Abu Qatada) v United Kingdom [2012] 8139/09 at [46]

[48] The European Convention on Human Rights

[49] [2012] 8139/09

[50] Hirst v United Kingdom (No 2) 2005 74025/01

[51] Theresa May MP, Secretary of State for the Home Department, Hansard (House of Commons 7 Feb 2012 : Column 166)

[52] [2009] 1 LRC 738

[53] I.b.i.d  at [45]

[54] Deportation:  Deportation of a Foreign National, Safety on Return- Othman v United Kingdom (European Human Rights Law Review, 2012 Case Comment) page 5

[55] Christopher Michaelsen, The renaissance of non-refoulement? The Othman (Abu Qatada) decision of the European Court of Human Rights (International and Comparative Law Quarterly, 2012) Page 1

[56] I.b.i.d page 1

[57] European Convention on Human Rights

[58] [2012] 8139/09 at page 7

[59] I.b.i.d page 7

[60] Ben Brandon, Terrorism, Human Rights and the Rule of Law; 120 years of the UK’s Legal Response to Terrorism (Criminal Law Review, 2004) Page 9

[61] [2012] 8139/09

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