Friday, October 21, 2016

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Closed Material Procedures: The Use Of Non-Legal Representation In The Form Of Special Advocates

Christy Walsh digs beneath the term Closed Material Procedure and brings light to bear on the practice's invidious effects on human rights. Christy Walsh has for years campaigned against miscarriages of justice.

I would first like to disclose with what legal authority I have for writing the following article. I successfully completed a Master’s Degree in Law (LLM) at University College Cork. I conducted an in-depth procedural analysis of the use of Closed Material Proceedings for which I obtained a grade of 74%. My work was graded on basis that I had made original contribution to my research topic. My work was examined and graded by distinguished expert in human rights law, Professor Siobhán Mullally and anti-terrorist legislation expert Professor Fiona de Londras.

The United Kingdom’s Justice and Security Act 2013 (JSA) introduced the use of Closed Material Procedures (CMPs) throughout the practice of all areas of civil law within the UK. The Government’s stated purpose for the JSA and CMPs is to protect the intelligence agencies operational practices and security sensitive material. The use of CMPs impact on a number of human rights but I wish to pay particular attention to Article 6 of the Convention with specific focus paid to Article 6(3)(c) of the Convention; namely the right to effective legal representation and advice. 

It is argued that SAs are required to represent the interest of the excluded party but there are other elements seemingly cloaked in confusion, for instance who do they take instructions from? Who is their client? Do SAs, more accurately, take gisted guidance, and not instructions, from an excluded party? Why does the Treasury Solicitor’s Department provide SAs with secret training and advice? Does that secret advice indicate from where SAs take their instructions? Should excluded parties discuss their case with anyone who is not their own lawyer?

In brief, the purpose behind CMPs is to withhold alleged security sensitive material from being disclosed to at least one party to civil legal proceedings and their legal representatives. The use of CMPs means that at least one party to the proceedings will be excluded from part, or, the whole of the proceedings. The Act does not address admissibility of evidence and the excluded party spends all his/her energy trying to discover what the secret evidence might be. 

There are essentially 3 stages to CMPs, these are; i) secret allegations, from secret witnesses, are made against the party to be excluded from the proceedings; ii) the excluded party’s interests will be secretly represented in his/her absence by a SA appointed by the government through the Attorney General[1]; and, iii) part or all of the judgment will remain closed to the excluded party. 

The gateway to CMPs is through section 6 of the JSA 2013. Section 6(11)(d) defines ‘sensitive material’ as “material the disclosure of which would be damaging to the interests of national security.” Rule 82.13(1)(b) of the Civil Procedure Rules (CPR)[2] prevent disclosure because the closed material must not contain anything that “would be damaging to the interests of national security”. However, Rule 82.13(1)(a) of the CPR, distinguishes SAs as non-legal representatives who are only permitted to view the sensitive material, because they are not “the specially represented party’s legal representative”. This is my first piece of evidence showing that SAs are not an excluded party’s lawyer.

My second: Section 9(4) of the JSA which reads: “A person appointed as a special advocate is not responsible to the party to the proceedings whose interests the person is appointed to represent.” 

My third: the professional rules and codes of ethics which regulates the legal professions also reveal that SAs do not represent the excluded party. Rule 12.06 of the Code of Conduct which directs that a Barrister should not represent a lay client in Court in the absence of the professional client or a member of the professional client’s staff. The presence of an instructing Solicitor, the PCC advises, ensures that there is less room for dispute about what has actually happened during a consultation or in Court.[3] Whereas, a Parliamentary Committee observed that unattended SAs “lack the resources of an ordinary legal team for the purpose of conducting a full defence in secret”.[4]

In September 2015, the Bar Standards Board (BSB) released its updated version of its rules and codes; they contain no specific rules distinguishing SAs from any other member of the Bar. Rule rC15.5 stipulates that all barristers’ “must protect the confidentiality of each client’s affairs, except for such disclosures as are required or permitted by law or to which you[r] client gives informed consent.”[5] That defines SAs relationship with the relevant government Minister and not an excluded party. 

Under Rule 3.1.3 of the Charter of Core Principles of the European Legal Profession[6], all barristers must not undertake any task which he knows or ought to know he is not competent to handle.[7]

The Attorney General’s appointment of numerous SAs could serve to circumvent Article 6(3)(c) where an excluded party must select “legal assistance of his own choosing” from a line up of lawyers employed by the government. As Garner points out what if the excluded party has means to engage a better lawyer? Or, alternatively the excluded party wishes to remain a litigant in person?

The Parliamentary Justice Committee on Human Rights (JCHR) state that SAs “are bound by the ethical standards of the Bar Council."[8] Special Advocate, Dinah Rose, QC told the JCHR, as the JSA sets out at section 9(4), that: “You do not have a client and you have no access to the client.”[9] When the JCHR asked Ms Rose if CMPs raise concern for abuse she replied that there is an inevitability of wrong motivations and wrong decisions going on “because the people you are asking to make the decisions are people who are not neutral but have an interest in the outcome.”[10]

Both Article 6(1) of the European Convention on Human Rights and Article 14(1) of the 1966 International Covenant on Civil and Political Rights only specify that the press and the public can be excluded “from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society”. Some trials can take place in absentia of an accused but that is usually because the authorities have failed to locate the accused. But the whole concept of closed material procedures undermines the spirit of both long held common law principles and ever developing international human rights standards.

The ECtHR has been reasonably consistent on the right to proper legal assistance. In Birutis and Others v. Lithuania, 2 of the applicants’ lawyers were not permitted to question “anonymous witnesses” and such a handicap was “not counterbalanced by the procedures followed by the domestic judicial authorities”. The ECtHR unanimously found that failure to question or scrutinise “the manner and circumstances in which the anonymous statements had been obtained, was unacceptable” that there had been a violation of Article 6 §§ 1 and 3(d) of the Convention.[11] In Colac v Romanian the applicant in that case was “not given the opportunity to examine” the witnesses “or to have them examined” that again the ECTHR unanimously found that there had been “a violation of Article 6 § 3(d) taken together with Article 6 § 1 of the Convention”.[12]

In Lüdi v Switzerland the ECtHR found that neither the applicant “nor his counsel had at any time during the proceedings an opportunity to question” an intelligence officer’s statements to enable them to “cast doubt on his credibility”. Arguments of the need to protect anonymity were unconvincing because it would have been possible to preserve “the anonymity of their agent, so that they could protect him and also make use of him again in the future”.[13] The Court held that the applicant’s Article 6(1) and 6(3)(c) rights were violated.[14]

If a legal representative conducted legal representation in the same way that a non-legal representative does then he/she would quickly encounter being sanctioned for negligence or professional misconduct. It is troubling and may represent but one area of the JSA which creates a conflict with Article 6(3) of the Convention.



[1] In some instances the court or the excluded party can request that a SA be appointed.
[2] Justice and Security Act 2013, Part 2, Section 6(11).
[3] Updated Guidance On Attendance By Solicitors On Counsel, Journal of the LSNI, Spring 2013, p.38.
http://www.lawsoc-ni.org/download/fs/doc/WRIT_SPRING_PDF/pdf/
[4] Parliamentary Constitutional Affairs Committee, 7th Report, 2004-5 at § 52(ii).  http://www.publications.parliament.uk/pa/cm200405/cmselect/cmconst/323/32302.htm.
[5] The Bar Standards Board Handbook, 2nd Edition, September 2015, at p. 34 Rule rC15.5.  https://www.barstandardsboard.org.uk/media/1663630/bsb_handbook_sept_2015.pdf.
[6] Charter of Core Principles of the European Legal Profession http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/EN_CCBE_CoCpdf1_1382973057.pdf
[7] The Bar Standards Board Handbook, 2nd Edition, September 2015, at p. 34 Rule rC15.5.  https://www.barstandardsboard.org.uk/media/1663630/bsb_handbook_sept_2015.pdf, at, Part VII, Rule 701(b)(i).
[8] See also JCHR, Counter-Terrorism Policy and Human Rights: Prosecution and Pre-Charge Detention
Twenty-fourth Report of Session 2005-06, at p.55.
[9] House of Commons Oral Evidence: Taken Before The Joint Committee On Human Rights, The Justice And Security Green Paper, Tuesday 24 January 2012, Dinah Rose QC and Tom Hickman, Uncorrected Transcript Of Oral Evidence To be published as HC 1777-I, at p. 14. http://www.parliament.uk/documents/joint-committees/human-rights/JCHR%2024%20January%20transcript.pdf. Accessed 1 Sept 2015.
[10] House of Commons Oral Evidence: Taken Before The Joint Committee On Human Rights, The Justice And Security Green Paper, Tuesday 24 January 2012, Dinah Rose QC and Tom Hickman, Uncorrected Transcript Of Oral Evidence To be published as HC 1777-I, at p. 16, Q34.http://www.parliament.uk/documents/joint-committees/human-rights/JCHR%2024%20January%20transcript.pdf. Accessed 1 Sept 2015.
[11] Birutis and Others v. Lithuania [2002] (Applications nos. 47698/99 and 48115/99), at § 34.
[12] Colac v. Romania[2015]  (Application no. 26504/06), at § 55
[13] Lüdi v Switzerland (Application No 12433/86) (1992) 15 EHRR 173, at § 49.
[14] ibid, at § 50.

6 comments :

Henry JoY said...

Congratulations on the Masters Christy, a superb achievement.

Justice, the law and enforcement thereof ought not just be fairly applied it ought also be totally transparent in its application.

AM said...

Henry Joy,

Christy knows his stuff - here he draws attention to a very dangerous and draconian phenomenon. CMP makes the concept of justice a sick joke

Simon said...

Congratulations Christy! It takes a lot of hard work and determination to achieve a Masters.

I guess you are closer than ever to the real bar and I think I now have to eat my words if you remember my unkind and now unfounded comment on another post.

All the Best!

Gary McCool said...

A Michael Mansfield in the making Christy, congratulations, proof that you cant keep a good man (and a right man) down. Inspired by you I kept at my own case and got a good result at the end of last year.

Christy Walsh said...

Thanks for the comments guys all are appreciated. AM I have just sent you a second article on CMPs.

Steve R said...

Well done on the Masters Christy.