This article was written by Tim Suter, first appeared in New Law Journal on 9 December.
The principle of open justice is a fundamental tenet of our legal system. It encompasses the right of parties directly involved in legal proceedings, together with the wider public and the media, to attend legal proceedings. In the words of Lord Atkin (Ambard v Attorney-General for Trinidad and Tobago  AC 322 at 335) “justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful…comments of ordinary men”. The rationale of a public hearing ensures confidence in the administration of justice and is a form of democratic control and, with well-trodden caveats to protect sensitive evidence, informs and energises how our justice system operates.
The government’s recently published Green Paper on Justice and Security challenges this long held presumption with proposals that would permit, in prescribed circumstances, closed material procedures in civil proceedings and inquests; in other words secret hearings where evidence is introduced by one party, relied upon by the court but not disclosed to the other party. The Green Paper suggests that the open justice principle and the common law mechanism of public interest immunity need to be recalibrated for a post 9/11 world, where increased intelligence activity has led to greater court scrutiny of the nation’s secrets. This article will explore the background to the government’s proposals and whether such wide scale reform of a basic precept of our court system is justified.
A Well Established Principle
In a prescient lecture to the Judicial Studies Board earlier this year Lord Neuberger discussed open justice and how it applies in the 21st century. As he duly noted it is a concept that has been the rule in England “from time immemorial”. The right to a public hearing is not an abstract ideal but one that has evolved from centuries of legal precedent. It was a cornerstone of our courts even before the English legal clock started ticking with the 1275 Statute of Westminster.
An oft quoted and erudite explanation of the right to a public hearing was given in the case of Scott v Scott  AC 417 where Lord Dunfermline cited from Jeremy Bentham that “publicity is the very soul of justice”. In Attorney General v Leveller Magazine  AC 440 Lord Diplock concluded that, “if the way that courts behave cannot be hidden from the public ear and eye, this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice”. Ultimately, a public hearing ensures that no man is above or below the law and that every individual and organ of the state is accountable for his actions.
Open justice is enshrined as a fundamental right across the legal world and in international human rights. Article 14 of the International Covenant on Civil and Political Rights guarantees not only that all persons shall be equal before the courts but also that everyone shall be entitled to a fair and public hearing before an independent tribunal. A similar provision is of course set out in Article 6 of the European Convention on Human Rights, which is given direct effect in the UK by the Human Rights Act 1998 and is set out in part 39.2 of the CPR. It is therefore no understatement when the Green Paper acknowledges that the issues that it seeks to tackle are of profound importance and go to the heart of our democratic values.
Exceptions to the Rule
The right to a public hearing is however not a universal one and nor should it be. There is an inherent conflict between ensuring that justice is seen to be done and ensuring that justice can be properly administered. Part 39 of the CPR lists some of the exceptions in civil proceedings where it is permissible to hold proceedings in private, in particular if it is in the interests to protect a child; if it involves confidential information; or it involves matters relating to national security. Similarly rule 17 of the Coroner’s Rules 1984 permits the exclusion of the public, but not interested parties, from an inquest if it is in the interests of national security to do so.
It is the acute disclosure dilemmas thrown up by national security issues with which the Green Paper is concerned. The existing concept of Public Interest Immunity (PII), expounded in the seminal case of Conway v Rimmer  HL, is the established safety valve used by the courts to depart, where it is necessary, from the principle that justice should be administered in public. In practice, that means a judge must weigh a PII certificate, arguing it is in the interests of national security to withhold sensitive evidence from the court, against the public interest in ensuring the proper administration of justice. If there is an intolerable unfairness to the public then the material must be disclosed. Typical examples of national security claims are the need to protect the identity of informants or the need to protect sensitive information, such as the plans of a submarine that sunk during sea trials just before the outbreak of the Second World War (Duncan v. Cammell Laird and Co. Ltd  AC 624).
PII operates to exclude sensitive evidence from proceedings altogether so that none of the parties can rely on it. A closed material procedure inverts the principle. It excludes the party that would normally receive such disclosure from the proceedings so that the evidence, however sensitive, can be heard by the judge and taken into account, even if not tested by the other side.
Guantanamo and Extraordinary Rendition
Is there any justification for such a drastic reversal of natural justice? The reasoning of the Green Paper for suggesting the introduction of such a radical reconfiguration is threefold – (i) the need to allow the security agencies to rely on national security evidence where it would otherwise be left in the vacuum of PII; (ii) to prevent the damaging disclosure of sensitive evidence not caught by PII; and (iii) to allow the security agencies to argue the merits of a case where they would otherwise have to settle or, in the case of an inquest, where they cannot withdraw.
In the case of Al Rawi v Security Service  UKSC 34 the Security Service, faced with a claim for damages from former Guantanamo Bay detainees sought to rely on national security material to defend the claims; material which would normally fall foul of the preclusionary PII principles. The security service argued that the court should have the power to replace the PII process with a closed material procedure in exceptional circumstances and where it was in the interests of justice. The Supreme Court roundly rejected the submission. Lord Kerr (paragraph 94) dismissed it as a "second best attempt to secure a just outcome to proceedings". Such a fundamental change it was held could only be legislated by Parliament.
The Green Paper is one aspect of the Executive's response to their Lordships decision in Al Rawi. It seeks to address how to let the courts consider highly relevant but highly sensitive evidence where it would normally be excluded under PII. The proposals place heavy reliance on the system of special advocates already in use in a limited number of specialist proceedings, most notably the Special Immigration Appeals Commission. If the Secretary of State considered that it was 'absolutely necessary' (the test is not detailed any further) to enable the case to proceed a closed material procedure could be triggered, which would be reviewable by the trial judge, much like a PII certificate. The excluded party would be unable to hear the evidence and a special advocate would act for the public interest.
The Green Paper also advocates a closed material procedure to address the mischief laid bare by the Binyam Mohammed case (R (BM) v Secretary of state for Foreign and Commonwealth Affairs  EWCA Civ 65). Another scourge caused by a returning Guantanamo Bay detainee who sought a third party Norwich Pharmacal order for disclosure of materials held by the UK government regarding his allegations of torture whilst being detained on behalf of the United States. Despite vigorous claims for PII on the grounds that disclosure would damage intelligence sharing with the United States, the government was obliged to release a 7 paragraph CIA summary showing what the UK knew of the torture allegations.
The government position, précised in the Green Paper, stresses the strains placed upon an intelligence community that is being increasingly called to account but then cannot rely on crucial evidence to defend itself. As an example the Green Paper argues that from 1974 to 2010 the number of applications for judicial review has increased by more than 10,000 (Green Paper paragraph 1.15). Whilst in the first 90 years of the Security Service’s existence no legal cases impacting on its work were brought before the House of Lords there have been 14 in the last ten years. The Green Paper contrasts recent secret intelligence successes, such as the interception in October 2010 of explosives on air freight, against the need for safeguarding intelligence material supplied by foreign governments. The inescapable conclusion is that the edifice of intelligence sharing between the UK and her partners, known as the 'control principle', will collapse if the UK courts allow public interest to trump national security.
The existence of a closed material procedure before UK courts is not new. It was first introduced following the case of Chahal v UK (1996) 23 EHRR 413 and is used in 21 different contexts, including parole board hearings and in SIAC cases. It is also a procedure that is utilised, albeit rarely, in other jurisdictions such as Australia, Canada and the US. The Green Paper suggests that the extension of a closed material procedure will enhance, not diminish, fairness in those exceptional cases where it is required. It will allow the court to consider all material and will reduce the risk of damaging disclosure. It is suggested that the cost, in resources and expense, of engaging in litigation where the government cannot defend itself is unsustainable. Increasingly, the government argues, it is faced with the catch-22 of fighting cases where it cannot deploy key arguments but where it must invest considerable time applying for PII for the very documents that will support its case. The dilemma, brought to the fore by the Green Paper, is whether the principles of open justice or the need to ensure that we have a system that allows for cases, however sensitive, to be fully litigated before a judge should tip the scales.
There are many imponderables that the Green paper does not tackle - the trigger for when a closed material procedure could arise; how such a procedure can be shoe horned into two such vastly different kinds of jurisdiction, one adversarial and the other inquisitorial; how the procedure will comply with international law; and whether the Wiley PII balance will be retained as a disclosure test? Ultimately, there must be a considered public debate about the proposals and whether we understand and, are prepared to sign up to, the implications of letting our long treasured principle of open justice become a cloistered virtue.
Tim Suter, Senior Associate, Public Regulatory Law Group at Fieldfisher.
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