By Tobias Thienel
Many things of which the state has gained knowledge have always had to be classified as state secrets. Whatever else it may have done, and whatever it may be, the ‘war on terror’ certainly has not led to a decline in that – very far from it, if anecdotal evidence is anything to go by. What the ‘war on terror’, with its very much interlocking aspects of national security and criminal law enforcement, arguably has done is to increase the frequency with which secret material, judged sensitive on the grounds of national security, is adduced in evidence in criminal proceedings: see Serrin Turner and Stephen J. Schulhofer, The Secrecy Problem in Terrorist Trials, 2005, p. 9. But not only in criminal trials: if, for instance, measures are taken against a person not in the course of a prosecution, but in the furtherance of public security by the police and other authorities, it may have to be shown in court that this person really is or was a threat to society. What, then, if evidence supporting such a finding is shown to the court, but is kept from the person concerned because it is secret material? Does that violate the right to a fair trial, either at all or even necessarily? I have previously concerned myself with a closely related question in the olden days of The Core, and now gather up the threads, as it were, in the light of recent events. The recent event in question is the judgment of the House of Lords in MB v. Secretary of State for the Home Department  UKHL 46,  3 WLR 681, in which the matter was considered at some length, and with reference to an impressive number of authorities. The case before the House concerned the latter of the situations described above, the withholding of evidence from a private party in civil (administrative) litigation: the appellants had been placed under control orders by the Home Secretary, on account of being suspected of involvement in terrorist activity. These orders put the appellants under curfew in their homes for parts of every day, and subjected them to electronic tagging and reporting obligations. When the appellants challenged the control orders as unjustified in the High Court, some of the evidence showing them to actually have some involvement in terrorist activity was kept from them, but shown to the court as closed (secret) evidence. Such material was, however, also shown to specially instructed, security-vetted barristers, who were to present argument on the closed evidence to the court, without informing their nominal clients (the controllees) of the content or nature of that evidence. These counsel are known as ‘special advocates’ in the UK, or as ‘cleared counsel’ in the US, according to the study by Turner and Schulhofer, cited above, at 25 et seq. I will stick with the UK terminology in this post, as it is used by the House in MB. That case was all about the ECHR. The starting point, therefore, was that the right to a fair trial (Article 6) required, in civil as in criminal proceedings, that all evidence adduced by the other side be disclosed to a private party, to enable him or her to challenge and comment on it: Ruiz-Mateos v. Spain, para. 63; McMichael v. United Kingdom, para. 80; Lobo Machado v. Portugal, para. 31. The right is accordingly engaged where evidence is kept from a party because it should remain confidential. However, the right is not necessarily violated in any such case. As the European Court has said quite frequently,
‘the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, only such measures restricting the rights of the defence as are strictly necessary are permissible under article 6(1). Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities.’
(Rowe and Davis v. United Kingdom, para. 61; Jasper v. United Kingdom, para. 52; Edwards and Lewis v. United Kingdom, paras. 46, 48; Botmeh and Alami v. United Kingdom, para. 37) That must be right. Certainly, the text of the Convention does not actually allow for such restrictions; its guarantee of the right of the accused (in criminal proceedings) ‘to examine or have examined witnesses against him’ is without any apparent exception. But the need to occasionally keep the identity of witnesses, or details as to any other evidence, from dangerous defendants is obvious, as is the concern that classified material should not generally have to be disclosed. The solution, and the justification of the approach quoted from the European Court above, would seem to be this: the specific rights applicable to criminal proceedings laid down in Article 6(3) ECHR are simply particular aspects of the overall right to a fair trial (Doorson v. The Netherlands, para. 66). That overall right can never be compromised in any way; there can never lawfully be an unfair trial. However, the constituent rights under Article 6, whether expressed in the article or later found to be implied by the Court (such as the right against self-incrimination: Serves v. France, para. 46), are not absolute. For instance, the Court has held that the right of access to a court was not absolute, but could be restricted on condition of proportionality: Golder v. United Kingdom, para. 38; Tinnelly & Sons Ltd. and McElduff and Others v. United Kingdom, para. 72. Similarly, the presumption of innocence under Article 6(2) has been held to sometimes allow the state to place a burden of proof on the defendant: Salabiaku v. France, para. 28. Also, the right to question witnesses under Article 6(3)(d) may restricted insofar as absolutely necessary, while counterbalancing the difficulties thereby caused to the defence: S.N. v. Sweden, para. 47. Simply put, a trial can be perfectly fair even if certain of the particular aspects of the general right to a fair trial have been the subject of reasonable restrictions (a similar approach was taken by Lord Bingham in Brown v. Stott  1 AC 681, 693, 704). Returning now to the criteria of legitimate restrictions established by the European Court and quoted above, we may ask how a court should take care of the concerns relating to secret evidence. The Court has indicated, in the passage set out above, that any restrictions must be strictly necessary, and also that any disadvantages thus imposed on the party that is left in the dark should be counterbalanced in the judicial procedures. When is it ‘strictly necessary’ to keep secret evidence from the other party, and what could be good measures designed to counterbalance any damage done to that party? The answer to the first question will depend on the nature of the evidence being withheld. If it has been classified in good faith and for good reason, it may be necessary for it to remain confidential. [There is an interesting side-issue here: if such a case goes to the European Court, can it then order the production - possibly in camera - of the secret material, to assess whether it really does contain sensitive information? The Court has some powers of discovery, but its limits seem to be largely untested.] The first way of preventing secret evidence from being disseminated might be to present it in the presence and in the full knowledge of all parties, but after having excluded the public from the courtroom. The provision on the publicity of judicial proceedings clearly allows for this (Article 6(1)(2)), but that is not our problem. Our particular problem arises where evidence must be kept specifically from a party; in such a case, excluding the public is not going to help: see MT (Algeria) v. Secretary of State for the Home Department  EWCA Civ 808,  2 WLR 15, para. 20. That leaves the possibility of showing the closed material to counsel for the party that cannot see those pieces of evidence. The option here is to either open the material for inspection by the party’s normal counsel, who then could not discuss that material with their client, or to instruct ‘special advocates’ (as described above). The first option does not seem promising: if the same person had to act in two roles, receiving instructions from the client in some respects, but being prevented from seeking any such support in others, then the particular problems of the latter situation would be a lot less visible (see also MT (Algeria), cited above, para. 21). The court might overlook them, thus exacerbating the problems. That leaves us with the special advocates. Two questions arise here: is the state obliged to allow for this procedure, and if it does, is that enough? The first point seems simple enough, and was answered by the House of Lords in MB more or less in passing (which is unsurprising, given that special advocates had in fact been instructed): the special advocates procedure was capable of improving the position of the party who could not know certain pieces of evidence, and was, indeed, a valuable tool for dealing with such situations: see MB, paras. 35, 64, 83, 90. The House also noted that the European Court had also recommended the special advocates procedure: Chahal v. United Kingdom, paras. 131, 144; Al-Nashif v. Bulgaria, paras. 96-97. It therefore appears that it will be highly problematic for a state not to offer this kind of procedure in cases involving secret evidence. But MB was really about the second question: is the special advocates procedure necessarily enough to secure compliance with Article 6? The answer to that was in the negative (Lord Hoffmann dissenting). Valuable though the procedure was as a means of overcoming the considerable difficulty posed by secret evidence, it was not perfect, and might occasionally fall short of the requirements of Article 6. Lord Bingham described the matter as follows (para. 35):
‘The use of an SAA is, however, never a panacea for the grave disadvantages of a person affected not being aware of the case against him." The reason is obvious. In any ordinary case, a client instructs his advocate what his defence is to the charges made against him, briefs the advocate on the weaknesses and vulnerability of the adverse witnesses, and indicates what evidence is available by way of rebuttal. This is a process which it may be impossible to adopt if the controlled person does not know the allegations made against him and cannot therefore give meaningful instructions, and the special advocate, once he knows what the allegations are, cannot tell the controlled person or seek instructions without permission, which in practice (as I understand) is not given. "Grave disadvantage" is not, I think, an exaggerated description of the controlled person’s position where such circumstances obtain.’
It was therefore held that cases might arise where Article 6 would be violated by the use of secret evidence. In such a case, the state only had two options: either declassify the relevant material, or do not rely on it in court. That seems to me a careful application of the principle of proportionality, a principle that itself runs as a golden thread through international human rights law, and rightly so. The state can only infringe human rights if it absolutely has to, and even then may on occasion be prevented from doing so. If it was different, we might as well do away with all human rights.