Secret cases: Who could be affected?
- 29 May 2012
- From the section UK Politics
The government is proposing more closed hearings in British courts to protect national security. What cases are already affected by this approach - and which sort of cases could join them?
The government's proposal is to make more use of what's known as a Closed Material Procedure (CMP) in civil law - ie, cases that are not criminal trials. Under CMP, part of the case is argued behind closed doors so that the government can reveal sensitive national security information, such as an intelligence assessment by MI5. The information is revealed to the judge and security-vetted lawyers called Special Advocates. The system has been approved by the European Court of Human Rights - but opponents say it can never be completely fair.
CASES WHERE THERE ARE ALREADY CLOSED HEARINGS
National Security deportations
The CMP system was developed in the late 1990s because the European Court said that the-then system for deporting people who were judged a threat to national security was unfair. Today, in these cases, the person who the government wants to remove from the UK challenges the deportation order at the Special Immigration Appeals Commission. The most well-known case before it is that of radical cleric Abu Qatada.
In this semi-secret court, the person who is appealing against deportation makes their case and then the commission goes into a secret hearing. During that session, the full national security case is outlined - meaning sensitive secret intelligence assessments. A Special Advocate argues against it on behalf of the appellant - but cannot go back to their client to ask them for a response to specific points.
Terrorism Prevention and Investigation Measures
These are the house-arrest style conditions imposed on some terrorism suspects - the system used to be called Control Orders. A challenge to a T-PIM is similar to those in national security deportations - there is an open and closed element of the case. In theory, the final public judgement includes as much detail as possible because Britain's top judges have ruled that each suspect needs to have a proper idea of the secret case against them, even if sensitive intelligence-gathering techniques must be protected.
Closed hearings have featured in an employment tribunal where an immigration officer lost his security clearance because he was related to a man convicted over the 2006 airlines liquid bomb plot. Closed hearings have also featured at the Parole Board where a release is being challenged - but the reasons are too sensitive to reveal to the prisoner.
CASES WHERE THERE COULD BE CLOSED HEARINGS
Some of the cases detailed below have already been through the courts. Each represents a situation where the government would want to use closed hearings to defend itself and protect sensitive information.
Binyam Mohamed was detained in the wake of the US-led invasion of Afghanistan. Pakistani interrogators first beat him and then the US organised his rendition to Morocco. He was tortured and, at one point, they took a scalpel to his genitals.
He ended up in Guantanamo Bay. His British lawyers fought a long-battle to prove that London had some indication of his treatment before he was taken to Morocco.
They argued that information helped prove that any confession he had made was worthless.
He won his case and the Court of Appeal released seven sensitive paragraphs detailing what Washington had told London.
In this case, the government argued that the information could not be released because it belonged to the US intelligence agencies - and that it was given to the UK on the basis that it would never be released. In actual fact, the Court of Appeal in London only released it after it had been published by a US judge.
Guantanamo Bay detainees
Men from the UK who were held at Guantanamo sued the government for damages for its alleged complicity in their detention and transfer to the US military camp. The case was focused on documents alleging that the UK knew what was happening to the men and could have stopped it. Ministers authorised a multi-million pound settlement to make the men drop their cases and so prevent any documents seeing the light of day.
The Supreme Court ruled that the government could not withhold information in cases like these. If the new law goes ahead, this is precisely the kind of case that would be affected because the government could produce material behind closed doors to defend itself.
Libyan rendition cases
Two former Libyan dissidents, Sami al-Saadi and Abdul Hakim Belhadj, allege that the UK was involved in their kidnap and rendition. They say they were tortured in one of Colonel Gaddafi's prisons.
The men are preparing their cases which are largely based on documents uncovered during the dictator's overthrow. If these men had attempted to bring their cases without already having seen the documents, the case would be similar to the Guantanamo Bay legal action.
Noor Khan is a Pakistani man who says his father was killed by a US drone strike. His British lawyers have begun an action alleging that GCHQ, the government's secret communications centre, may be helping to provide the US with information used to identify targets. We don't know whether this is true or not - but if the case ever gets to court, the government would want to use a closed procedure to protect GCHQ's workings.
In a recent ruling , the High Court said that the government could not use closed material in cases where people have been denied citizenship.
The cases involve people who have been told they cannot have a British passport because they are not of good character. But in each case, the home secretary has not revealed the full reasons because she says it would be harmful to national security.
What that means is that there is some kind of secret assessment of the individual and to reveal it would give away how the government came to that conclusion. In the case, Mr Justice Ouseley said that the parties could not voluntarily agree to a closed procedure - and that Parliament would have to legislate. The UK Human Rights Blog, edited by lawyers, explains the cases in full here .