Special Advocate System

Introduction

“’And why am I under arrest?’ he then asked. ‘That’s something we’re not allowed to tell you. Go into your room and wait there’”[1]. The story of Joseph K. described in Kafka’s novel The Trial may indeed appear to many as a terrible nightmare or description of a truly wicked legal system. Yet, it becomes even more shocking and unbelievable when one is told that far from being just a creation of a writer’s imagination, such situations have recently taken place in a contemporary democratic state[2]. Based on secret evidence presented in closed proceedings, a number of people “reasonably suspected of terrorism” have been repeatedly deprived of their liberty without any knowledge of the case or evidence against them. This was the effect of the control orders regime introduced in the United Kingdom as part of the so-called ‘war on terror’.

Fortunately, it has been claimed by various commentators, this has all changed after the AF[3] ruling. Imposing an obligation to disclose an ‘irreducible minimum’ of information to the suspect as well as questioning the fairness of the detention regime, the decision has been seen as effectively reprimanding the Government for failing to respect human rights. However, amid these appraisals the reality appears to be bleak as legal practitioners have regularly argued the limited practical impact of the decision. So far, the Government has resisted any reform, hiding behind the AF decision and claiming that a sufficient level of procedural fairness has been provided. The author will argue, however, that neither the presence of secret advocates(SA) nor the provision of a ‘gist’ of the case will ever be enough to fully secure Art.6 ECHR compliance. The lack of clarity surrounding the definition of an ‘irreducible minimum’ and the systemic problems of the SA procedure make it very likely that breaches of due process will continue. Without suitable reforms the imposition of control orders will thus remain susceptible to ongoing human rights challenges.

The argument is divided into three parts. The article begins with a detailed description of the terrorism-prevention regime introduced by statute as well as an assessment of its inherent problems. This is intended to give the reader a good understanding of the system as it operated before AF and the underlying fairness concerns. Part II then discusses the important House of Lords(HL) decision and considers the main claims about its limited practical impact. At last, the essay addresses the shortcomings of the SA procedure and the unresolved ambiguity surrounding the ‘gist’ requirement which further question the fairness of the procedure. It also puts forward workable proposals for the reform of the current system.

Part I

Control order framework

The terrorist threat and the consequent ‘global war on terror’ have required many democratic states to reconsider the balance between liberty and security and to introduce a series of new preventive measures. The first major, post 9/11 anti-terrorism legislation passed in the United Kingdom was the Anti-Terrorism, Crime and Security Act 2001 which provided for a virtually indefinite detention of non-British terrorism suspects where deportation was not possible. It was not long before this provision was challenged and ruled unlawful by the HL in the case of A and X and Others[4] on the basis that it breached Art.5 ECHR right to liberty and was disproportionate.

By way of response to the defeat, the Government repealed and replaced the provision with a new regime of restraint in the form of ‘control orders’. The Prevention of Terrorism Act 2005(PTA) empowers the Home Secretary(HS) to impose control orders upon both citizen and non-citizen terrorist suspects where he or she has “reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity” and it is necessary to make an order “for purposes connected with protecting the public from a risk of terrorism”. As such, these preventative orders may impose a wide range of conditions on an individual including relocation, curfews, electronic tagging and limitations on travel and association[5].

Considering the extent to which an individual’s freedom can be limited at the discretion of the HS, the PTA provides further for specific safety mechanisms in the form of court supervision. Thus the HS is normally required to seek the court’s permission to make an order[6] and the controlee has further the right to apply for judicial review of the decision[7]. The court has then the power to quash the entire control order, direct the HS to revoke it, or to modify the imposed obligations[8].

While this may appear to guarantee fairness, a problem arises as the PTA then goes on to impose an overriding objective on the courts to ensure that disclosures of information are not made where this would be contrary to the public interest[9]. This provides for the withholding of closed evidence from the suspect and his legal representative as well as their exclusion from all or part of the hearing. The problem created thereby is not that the controlee is denied all opportunity to reply to the Government’s claims. Rather, he is “denied access to what may be central aspects of the case against him and is therefore unable to fashion a reply and exercise procedural rights in an informed way”[10].

Hence, notwithstanding the procedural safeguards introduced, the existence of closed proceedings and the amount of secret material used alongside open evidence inevitably lead to questions of Art.6 ECHR compatibility and concerns as to how these procedures are capable of providing the required degree of procedural fairness.

Secrecy and the Special Advocates

Of course, the tendency of governments to use secret evidence against alleged enemies of the state is nothing new[11]. However, as it comes into conflict with the basic principles of due process, it sits more and more uncomfortably with the evolving human rights framework. Hence, while the courts have accepted that rules relating to arrest and detention may require modification in the terrorist context[12], they have stressed that the ‘war on terror’ should not deprive individuals of their basic rights to have notice of the case against them and the opportunity to respond[13].

To address the absence of the affected party from closed proceedings and resolve the tension between due process and national security, the solution adopted has been to appoint special advocates(SA). These are experienced security-cleared lawyers who are mandated to represent the interests of the controlee in any proceedings from which the individual and his legal representative are excluded[14]. Unlike the suspect, the SAs have access to all of the information put forward by the state, and are given the task of challenging the HS’s arguments and evidence on behalf of the affected individual. It is indeed difficult to deny that, at least in situations where secret evidence is not disclosed to the person concerned, the SA procedure represents an improvement – limited representation is indeed better than none[15].

However, even the SAs are not in a position to do anything to mitigate the unfairness of the procedure, if the process itself is overly unjust and the detainee is not provided with sufficient information to effectively instruct the SA representing him. For this reason, both the Joint Committee on Human Rights(JCHR) and the SAs have repeatedly expressed their concerns about the inadequacy of the procedure and emphasised that it was the fairness of the overall process that matters.

Part II

AF and the ‘irreducible minimum’ of disclosure

Throughout this period, the HL was also critical, but not with the same robustness with which it abolished the policy of imprisonment without charge or trial in 2004[16]. The reason was quite simple. Whereas Art.5 and the right to liberty could for the most part be treated mechanically, Art.6 was, by contrast, a less dispositive concept. While 16 hours of curfew have been declared by the HL to be an acceptable maximum limit[17], “fairness could not be readily measured in a quantum of hours or conversant relatives”[18]. Ill-prepared to challenge the Government’s scheme, the courts have repeatedly asserted that there is no minimum amount of information that must be disclosed to the controlees and that the use of SAs provides a sufficient procedural safeguard[19].

The real breakthrough came then with the decision of the European Court of Human Rights(ECtHR) in A v UK[20]. Although the court dealt with the regime which preceded control orders, it left no room for doubt that procedural fairness requires the controlee to be provided with the gist of the secret evidence supporting the allegations made against him. Without sufficient information, he was not in able to effectively challenge them. Moreover, the court said that the SAs could not perform their functions in any useful way unless the detainee had enough knowledge to effectively instruct them[21]. This clear ruling left no doubt that, unless the legal framework was amended, there will be more cases in which individuals are denied their right to a fair trial. It was also inevitable that, sooner or later, a challenge to the control order regime would arise, requiring the HL to take the decision in A into account.

When AF came before the HL, their Lordships have recognised that they now had to replicate the ECtHR test. Whether the matter was considered under Art.5 in deprivation of liberty cases or under Art.6 in the case of control orders, individuals were entitled to the same level of minimum disclosure. The HL has held that, in the light of the Strasbourg case-law, the controlees deserve to know an ‘irreducible minimum’ of the allegations against them. All nine law lords found that AF has been denied a fair hearing because he had no knowledge of the essence of his case. This right to know the gist of the allegations made existed “even though AF had been found to be a very dangerous man, even though the control order was necessary to protect society against him, and even though disclosure of further information to AF would damage national security”[22].

AF – high expectations and bigger disappointments

The HL decision has been welcomed with great enthusiasm and hailed as “a victory for fairness over secrecy”[23]. Requiring the disclosure of the gist of the allegations against a controlee, AF has, to a significant degree, addressed one of the main sources of the regime’s unfairness. However, as the evidence supplied to the JCHR suggests, AF had a limited impact on the fairness of the proceedings[24] and had not led in practice to a greater degree of disclosure. Although the Government has promised to review the existing control orders in the light of the decision and to consider further disclosure, it has actually taken a “minimalist and essentially passive approach” [25] to the HL ruling.

It is true that, following the decision, some control orders have been lifted. However, this was done only in the rare cases where the Government chose not to disclose secret evidence and was unable to impose the new ‘light touch’ control orders. In the majority of cases[26], it has managed to circumvent AF by imposing far less restrictive obligations, arguing that the requirement to provide disclosure under AF does not apply to these[27]. In other cases, the executive’s approach was to publish “headline allegations” only, thereby effectively failing to keep with the spirit of AF[28].

However, the decision was hardly revolutionary not least because it has been limited by the Government’s dismissive approach to compliance. The biggest disappointment of AF is that, while solely focusing on the minimum level of disclosure required, the HL has missed the opportunity to address some of the systemic limitations on the SAs’ ability to ensure Art.6 compliance[29]. While the courts have repeatedly found the presence of SAs to be, in practice, capable of providing the ‘substantial measure of procedural justice’ that Art.6 has been held to require[30], the truth is that serious practical problems constantly encountered by the SAs negate this reassuring finding.

There are broadly three practical problems that seriously compromise the alleged fairness of the procedure. These can be described as the lack of access to expertise and evidence, inability to effectively challenge the HS’s refusal to disclosure and the absolute ban on communication with the controlee after seeing secret evidence. As these problems have the potential to considerably undermine the ‘AF victory’, they will now be considered in turn alongside proposals for their reform.

Part III

(1) Lack of access to independent expertise and advice

Notwithstanding the rule change which permits SAs to adduce their own evidence[31], the truth is that they continue to have no real access to independent expertise and advice. As a result, they are practically unable to challenge the assessments of the Security Services. This issue has been repeatedly raised on a number of occasions[32] and was recently explained to the HL at the hearing of the appeal in OO (Jordan) v Secretary of State for the Home Department[33]. There, the SAs have first pointed out the “profound – and thus far insuperable – difficulties” preventing the identification and instruction of suitable experts. Their experience indicates that finding someone who has worked in the Security Service or has enough knowledge in this area, while is at the same time sufficiently independent, is almost impossible. Moreover, once such a suitable person is found, further practical obstacles arise:

“If the expert were to give evidence in a closed hearing about closed matters, he or she would need to have been subject to developed vetting. The cost, delay and issues of funding […] render this impractical”[34].

It appears that the procedural amendment has had indeed no effect in practice, as no SA in any case to date has ever been in a position to bring forward expert or other evidence to challenge the assessments relied on by the HS[35]. For these reasons, the SAs have recently referred to their newly-obtained right to adduce evidence as “entirely fanciful”[36]. The position therefore remains that, in spite of the amendment, SAs have virtually no means of adducing any material which contradicts the HS’s evidence. As a result, in the absence of any independent opinion or evidence to the contrary, the court is almost bound to defer to and rely on the expert assessments of the intelligence services. Without a doubt, this situation gives rise to a serious inequality of arms[37].

This alarming problem is further linked to another difficulty faced by the SAs – the lack of relevant expertise and therefore ability to challenge the executive’s objections to disclosure of a closed case.

(2) Inability to challenge objections to disclosure

One of the SAs’ main functions is to test and challenge the executive’s objections to disclose the closed material. Although the ‘gist’ requirement in the AF decision has significantly strengthened their hand when arguing for more disclosure, the SAs remain nevertheless very limited in their ability to do this effectively. This is simply because of the lack of pertinent expertise in reviewing the secret material obtained from the Government. It is a very complex task to understand the various codes or special terms used in this documentation (not least because it is often submitted in a foreign language), evaluate confidential information and predict how its release may harm the security interest. Without access to any independent expert evidence, the SAs have no effective means of gainsaying the executive’s assessment that publication might be to the detriment of the public interest.

Another important problem is concerned with the fact that ultimately the SAs have little leverage in this particular area. In most cases, the courts consider these issues as lying on the border line of justiciability and recognise the special expertise of the Security Services. It is indeed only in a very exceptional case that the court will question an intelligence assessment[38].

From the SAs point of view, the most effective way to challenge the Government’s objection is to demonstrate that the information is already in the public domain – once the open source is indicated to the intelligence services, the refusal to disclose is normally withdrawn[39]. However, where an allegation is entirely based on a closed source (for example agent reporting or intercept), the SAs have confirmed that the Government adopts a “precautionary” approach[40]. And where the HS objects to disclosure of the allegation on the grounds that this could compromise the source, this objection often becomes effectively unchallengeable. As the courts inevitably “accord great weight to views on matters of national security expressed by the agencies who are particularly charged with protecting national security”[41], the executive’s assessments about what can and cannot be published are almost always upheld by the court[42]. Lacking access to expert material, there is nothing the SAs can do.

The SAs’ lack of expertise and the courts’ deferential attitude constitute indeed a significant constraint on the SAs’ ability to effectively discharge their role and hence create a further risk of serious miscarriages of justice. However, it is submitted that the biggest obstacle to Art.6 compliance is the general prohibition on communication with the controlee after the SA has seen the secret evidence.

(3) Limited ability to communicate with the controlled person

In line with the provisions of the PTA, SAs are only permitted to communicate with the controlee and his legal representative before they are shown the secret material. Once they have seen or heard the closed information, they are precluded from discussing the case with any other person[43]. While a permission of the court for written communication can be obtained by application, this is required to be on notice to, and the full knowledge of, the HS. In practice, such permission is rarely sought or granted. The practical effect of the rule has been explained by a group of SAs who submitted evidence to the Constitutional Affairs Committee(CAC):

“There is in fact no contact…in relation to the closed case…Although the court has power to give directions authorizing communication in a particular case, this power is in practice almost never used…because…the Special Advocate can communicate…only if the precise form of communication has been approved by his opponent in the proceedings. Such a requirement precludes communication even on matters of pure legal strategy”[44].

Consequently, the CAC expressed the view that:

“This [i.e. the bar on communication] matters, because in many cases only the appellant may be aware of information that may prove his innocence, but is unable to provide it because he is not able to have sight or knowledge of any allegations based solely on closed material”[45].

However, despite the numerous parliamentary committees’ reports continuously drawing attention to the unfairness of this rule[46] and the representations made by the SAs, the Government has so far rejected the various calls for reform relying on the highly criticised Lord Carlile’s Report[47]. In the event, the absolute prohibition on communication remains and considering the Independent Reviewer’s recommendations there is little prospect for reform in the nearest future.

Lord Carlile’s conclusion that “improved training and closer co-operation should resolve the concerns” and that “[no] rule changes are necessary”[48], in no way addresses the SAs’ profound concerns about the prohibition on communication. Training is only partly connected to this particular limitation on the SAs’ ability to perform their functions. Contrary to what Lord Carlile seems to suggest, the limitation is inherent in the current rules, and cannot be resolved merely by improved training or co-operation. In the words of a SA, “the problem is one of fundamental bar”[49].

So long as the current rules remain unchanged, the SAs will be unable to effectively represent the interests of the controlees and therefore to mitigate the unfairness associated with the closed proceedings. Therefore, it is argued that in spite of the security concerns (regarding inadvertent leakage of sensitive material to controlees), changes to the current system are not only desired but essential in order to address this problem.

Proposals for reform

Several possible solutions have been already put forward. In 2005, the CAC advocated the relaxation on communication, subject to the implementation of alternative safeguards to secure sensitive material[50]. More recently, the JCHR, having considered the representations made to it by the SAs, suggested allowing consultations with controlees and their counsel after viewing closed materials[51]. This would, of course, then require that a mechanism be devised for safeguarding sensitive information, and would place the responsibility of avoiding inadvertent disclosure on the SAs.

Placing this much reliance on the SAs may of course raise certain doubts as to their suitability or accountability. However, considering the criticisms made by various groups and the continuing unfairness of the procedure, the author submits that the time has come for the Government to implement the following two proposals for a relaxation of the present framework:

(i) To allow communication on open matters (i.e. pure legal strategy and procedural administration, unrelated to the factual sensitivities of a case) even after service of the closed material. It should be noted in this regard that a notably less restrictive regime applies in the context of the SAs appearing before the Employment Tribunal[52]. Considering that material of equivalent sensitivity may be involved in both types of proceedings, the existence of a much more restrictive approach in control order cases appears therefore to be highly questionable.

(ii) To give SAs the power to seek ex parte permissions from a High Court judge to ask the controlee questions even after receiving the closed material. The communication would then be subjected to the judge’s authorization and conditions he considers appropriate. There would, however, no longer be a requirement to notify the HS.

International comparisons

The SAs appearing before the JCHR have repeatedly referred to the example of Canada where, despite the existence of same security concerns, a much more relaxed procedure is extensively used:

“They [i.e. the Canadians] have adopted a system which permits discussion between open representatives and special advocates on open matters, and have deployed a regime whereby the ex parte procedure may be used if there is a desire to communicate from the special advocates to the open advocates on anything that may impinge on closed material”[53].

Moreover, the communication has been subjected to legal professional privilege as between lawyer and client[54]. A characteristic so far inexistent under the UK control order regime.

While it is correct to say that the Canadian Government has built considerably upon the British system and experience when devising its own legal framework, significantly, however, the SA regime adopted has not reproduced a fundamental limitation inherent in the British system. For this reason, it is submitted that it is time the positions change and the UK follows Canada’s steps by introducing the same ex parte procedure. The Canadian example clearly shows that with appropriate guidance and safeguards, the relaxation of the current prohibition is possible without compromising the security of sensitive national information.

While procedural fairness cannot be truly guaranteed without these changes, it would be a mistake to conclude that no steps have been taken to address some of the problems and to improve the SA system. The executive has responded to some of the concerns and has introduced certain improvements. A special Support Office, composed of a dedicated team of lawyers and administrators, has been set up to assist the SA in carrying out their duties. Action has also been taken to cover concerns about remaining gaps in the SAs’ knowledge, as they are now provided with training in the special jargon used by the Secret Services and the techniques of intelligence gathering[55]. While the introduced improvements address only in part the repeated concerns related to the inadequate administrative support provided to the SAs, these are certainly welcome reforms. A dedicated and sustained development in this area will certainly alleviate some of the difficulties faced by the SAs.

How ‘irreducible’ is the ‘minimum’?

As a last point, the author sees it as important to consider another weak aspect of the AF decision – the ambiguity surrounding the exact meaning and scope of the required ‘gist’. As it will be argued, the lack of clarity in this area has an impact both on the fairness of the control orders proceedings and the SAs’ ability to effectively perform their function. While the decision in AF requires courts to consider whether a sufficient gist of the allegations has been given to the controlled person, the HL has refused to construct an authoritative test[56] and has rather relied on the High Courts to consider the amount of disclosure required on a case by case basis. While this clearly allows to maintain a balance between the protection of procedural fairness and the safeguarding of national security, it fails to address the question as to what criteria should be applied to establish whether the accused individual has been given enough information to instruct his SA or what ‘irreducible minimum’ really means.

Presented with such a wide discretion, the final decision as to what counts as ‘irreducible’ will hence inevitably depend on the individual judge hearing the case. This is highly undesirable, as it may potentially lead to multiple tests of varying degrees. While in some cases it will be sufficient for one appellant to be told that an investigation had shown him to have taken part in “terrorist training and activities”[57], others will require a greater degree of detail, such as when and where he is alleged to have taken part in such training. Trying to address this difficulty, the lower courts started applying a so-called “iterative approach” to disclosure, “whereby a bit of disclosure is given to a controlled person, the idea being that that may be enough for them to respond effectively and give effective instructions to their own lawyers and the special advocates, and if it turns out that it is not then to give a bit more”[58]. Unfortunately, instead of solving, this actually causes further practical difficulties for SAs and unfairness to controlees. Requiring a constant reapplication for the assessment of disclosure issues, the whole process is prolonged and justice is not seen as being done.

This problem becomes even more acute when one considers the increasing corpus of closed judgments with which the SAs have to familiarise themselves, the amount of secret evidence forming the factual background of each case and the inadequate law reporting[59]. Quite importantly, considering the evolution of statutory interpretation and common law in this area, it is difficult to overlook how these factors can eventually lead to mutually contradictory judgments. Common law adjudication, even in such highly fact-sensitive contexts, requires both the practitioners and judges to apply and distringuish previous cases. This process becomes considerably impaired when there exists no database of closed decisions to which neither the courts nor the SAs have access[60].

A welcome step to address this issue has been made in AF where the SAs summarised all the closed judgments dealing with disclosure, distilled the disclosure principles applied so far by the courts, and persuaded the HS to make that document open[61]. Yet, although this should be seen as an important contribution to the clarification of this area of law, it is highly important that an authoritative test be set up on the nearest occasion. Otherwise, inconsistency and potential unfairness will be difficult to avoid.

Comments and conclusions

Since the decision in AF much has been speculated about whether the control orders regime was sustainable. In AF itself, Lord Hoffmann warned that the HL decision “may well destroy the system of control orders”[62]. The predicted demise has however not materialised and the regime has been renewed for yet another year on March 2010 by an affirmative resolution of both Houses of Parliament. Putting the debate whether the regime is sustainable or desirable aside, it is nonetheless difficult to agree with Lord Carlile that “the control orders system functioned reasonably well in 2009, despite some challenging Court decisions”[63]. In view of the many practical problems considered in this essay, some important reforms of the system of control orders are necessary and it is truly regrettable that the Government has missed the opportunity to bring about certain much-needed changes this year.

As the author has tried to argue, contrary to what the Government has claimed, neither the AF minimum disclosure requirement nor the SA procedure in its current shape, have proved effective in securing the substantial measure of procedural justice required by Art.6. It has been shown that the mere provision of a gist will never be enough and that some very grave reservations about the human rights compatibility of the regime are still relevant even after the AF decision. As the HL has failed to address certain aspects of the SA procedure, several sources of potential unfairness have remained. Hence, so long as certain important modifications to the system are not made, each new control order imposed on an individual will amount to a potential breach of the right to due process. In short, the procedure will never operate in a fair manner without fundamental reforms so far resisted by the executive.

While it is understandable that the Government may want to maintain the system in order to satisfy its positive human rights obligation to protect the public from threats to their daily lives, there is no reason why it should resist proposals for reform altogether. Certain minor improvements of the regime would not only allow to preserve the existing national security protection system but would, at the same time, ensure a higher level of respect for human rights.

First of all, it is necessary for the executive to revise its position on the question of communication between the controlee and the SA following the disclosure of the closed material. There are ways to considerably improved the fairness of the system and the Canadian experience shows that national security could be protected in such circumstances by constructing appropriate safeguards.

The other suggested reforms relate to the work of the SAs. A greater research support and improved training for SA would allow them to effectively exercise their right to adduce evidence and to thereby challenge the expert material relied on by the Government. At the same time, the clarification of the ‘gist’ requirement in AF, or introduction of procedures monitoring the development of its meaning by the courts, would further enable the