Showing posts with label Closed Material Procedure. Show all posts
Showing posts with label Closed Material Procedure. Show all posts
Christy Walsh ✍ UK Intelligence and Security Forces colluded with Loyalists in the importation of weapons into Northern Ireland.

Some of these weapons were used to kill at least 132 people in what are collectively referred to as the mid-Ulster series of murder cases. The murders were carried out by Loyalist paramilitaries in collusion with British intelligence and security agencies. The Courts have directed that, of the 132 murders, 3 mid-Ulster cases should progress as the Vanguard cases: (these involve the murders of Mr Brian Frizzell, Mr Seamus Dillon and Messrs. Kevin and Jack McKearney). The Courts also directed the Vanguard legal representatives to co-operate and share evidence with the non-Vanguard Plaintiffs, as per Patrick Frizzell -v- PSNI [2019] NIQB 90.

This article will address the unlawful use of closed material procedures (CMPs) to conceal evidence of State collusion in the murders. The term ‘unlawful’ is used because the Justice and Security Act 2013 (JSA) specifically prohibits the use of CMPs in non-criminal cases where their outcome could result in criminal prosecutions. Secrecy surrounds the identity of who applied for 2 CMP certificates to withhold crucial evidence (material) from the Vanguard and non-Vanguard Plaintiffs in the murder cases. On 26th January 2023 the Court granted 2 CMP applications, RE: Frizzell (2017 No. 44663) and Lundy (2016 No. 27847). Mr Brian Frizzell was murdered by Loyalist on 28th March 1991 and Mr Alan Lundy was murdered on 1st May 1993.

CMPs are specifically intended to conceal the work of State intelligence and security agencies. The CMPs let the State conceal relevant evidence and exclude members of the public from all or part of legal proceedings in the alleged interest of national security. The exclusion also applies to the legal representatives of the excluded party. A government liaison lawyer, known as ‘Special Advocates (SA)’ is instructed to liaise with the excluded parties and their legal representatives to provide the ‘gist’ of information, only in so far as their instructing State client allows them to.

Criminal Cause in non-Criminal Proceedings

Both Section 6 of the JSA, and Rule 82.13(1)(b) of the Civil Procedure Rules (CPR), require that the evidence must “be damaging to the interests of national security”, and “The relevant person” must apply for the CMP. Paragraph 7 of the Court’s judgment does not identify who applied for both CMPs? CMP certificates are not available in all civil cases as per Section 6(11) of the JSA, “relevant civil proceedings means any proceedings (other than proceedings in a criminal cause or matter).” This means no Government Department; ie. Department of Justice (DoJ) or Ministry of Defence (MoD); or state agencies - Prosecution or Police Services, could apply for CMPs in the mid-Ulster series of murder cases because they all involve ‘criminal cause’ allegations of collusion in murder. If the State cannot apply for CMPs in non-criminal cases involving criminal cause, then who can?

A ‘criminal cause or matter’ includes non-criminal proceedings, where an ancillary outcome can lead to criminal proceedings. ‘Criminal cause or matters’ are determined by a 2 part test[1]; first, could the underlying civil proceedings afterwards place an individual in jeopardy of criminal proceedings or punishment? Second, is an investigation and potential prosecution a possible and foreseeable outcome of the non-criminal proceedings? Someone must be in possible and foreseeable jeopardy[2] of criminal investigation and prosecution as a direct outcome of the non-criminal proceedings. In the mid-Ulster cases it is alleged that members of the security forces colluded in numerous murders carried out by Loyalists, hence, criminal proceedings could reasonably follow the non-criminal proceedings. Section 6(11) of the JSA would make any CMPs issued to deny the mid-Ulster Plaintiffs access to crucial evidence of collusion unlawful.

Note: The Court’s recent Judgment in the inquest into the Loyalist murder of Mr Sean Brown on 19th May 1997 relates to non-criminal proceedings that could result in criminal proceedings. In Mr Brown’s case, the MoD, the Security Service and PSNI made applications to withhold evidence “which would otherwise fall to be disclosed during the inquest on the grounds of public interest immunity” (PII)[3]. They applied for PIIs and not CMPs. There is an important distinction why PIIs are different; evidence not disclosed to Mr Brown’s representatives in the non-criminal proceedings can also not be used by the State in those same proceedings. 

The use of PIIs in non-criminal proceedings do not undermine the integrity of any ancillary criminal proceedings that might result from Mr Brown’s inquest if there is evidence the security forces colluded with his killers. Whereas, the withheld evidence in CMP non-criminal proceedings is used by the State without the excluded party, or their lawyers, knowing what that evidence is. The use of CMPs would undermine the integrity of ancillary criminal proceedings and the proper administration of justice where PIIs do not. The State and its agencies show awareness that they could only lawfully apply for PIIs in Mr Brown non-criminal proceedings. In fact, the State has applied for PIIs in another mid-Ulster case because there is the potential of criminal proceedings following the outcome. But who applied for the 2 CMPs in the mid-Ulster murder cases if the State did not?

On 26th January 2023, Mr Justice Humphries delivered a closed judgment on the foot of an application for 2 CMPs: Re: Frizzell (2016 No. 44663) and Lundy (2016 No. 37847) (Appendix, page 37). The gateway to CMPs is through the JSA, Section 6, and Section 6(11)(d) defines ‘sensitive material’ as “material the disclosure of which would be damaging to the interests of national security.”. In the open Frizzell/Lundy Judgments[4] (9th Oct 2023) the Court does not identify who applied for the CMPs but only that it granted the requests (Paragraph 7). The CMPs give the appearance of a legitimate legal framework to withhold crucial evidence of state collusion in the mid-Ulster series of murder cases but that does not make them lawful. Once the CMPs were granted, the Court explains how the State agencies, and their 3 Loyalist agents[5], only then applied “under section 8 of JSA, to the court for permission not to disclose material otherwise than to the court, the special advocates and the Secretary of State” (Paragraph 9). But who applied for and obtained the original 2 CMP certificates referenced in paragraph 7? And why is their identity secret? The identity of the applicant of CMPs is not secret because it is the State or an agency of the state making the application in the interests of national security. But in the mid-Ulster cases it is secret without explanation or provision set out in the JSA.

The open Judgment does not mention the roles played by the Loyalist/State Agents, Alan Oliver; Anthony McNeill, and; Thomas Harper? Probably because it involves State collusion with them. The unlawful use of CMPs in the mid-Ulster cases means the Court, to satisfy the requirement of section 6(11)(d) of the JSA 2013, need only be persuaded to accept the rational that collusion with these men was an integral necessary evil in the interests of national security. That is, logically, the argument probably made in the closed proceedings the Plaintiffs and their lawyers were excluded from. The CMPs go directly to State collusion and are matters of criminal cause for which no CMP is lawfully available.

The unlawful use of CMPs means there is no way of knowing if the same closed material or named Loyalists are common throughout all 132 murder cases? Or if the secret evidence reveals more avenues, or individuals, used to arm, organize or direct the Loyalist killers responsible for the murders. The State or its agents cannot lawfully obtain CMPs in the mid-Ulster series of murder cases because they involve ‘criminal cause’ allegations of collusion in murder. Whose identity is being protected in paragraph 7 of the Judgment? Did that person apply for the CMPs to prevent the Plaintiffs from seeing crucial evidence in the murders of their loved ones?

References

[1] Amand v Secretary of State for the Home Department [1943] A.C. 147 (1942), p.156.

[2] Re McGuinness No 1 [2020] UKSC 6, paras.42-45, 48-49, 93.

[3] Brown’s Application [2024] NI Coroner 18, 4th March 2024.

[4] https://www.judiciaryni.uk/judicial-decisions/2023-nikb-97.

[5] Alan Oliver; Anthony McNeill, and; Thomas Harper.

⏩ Christy Walsh was stitched up by the British Ministry of Defence in a no jury trial and spent many years in prison as a result.

Is The Withholding Of Crucial Evidence In The Mid-Ulster Series Of Murder Cases Lawful?

UK Human Rights Blogwritten by Angus McCullough KC and recommended by Christy Walsh.

The unfairness of secret hearings is being aggravated by sustained neglect of the special advocate system. 

In this piece I explain why I have regretfully concluded that I cannot accept any new appointments as a special advocate until the Government provides proper support for that system.

25 June 2023 was the tenth anniversary of section 6 of the Justice and Security Act 2013 (the JSA) coming into force. It was an anniversary that, as far as I know, passed unremarked. Nevertheless it was a remarkable anniversary – though not a cause for celebration. This is because it marked 5 years since the date that Parliament had required a review of the controversial procedures under the Act, involving secret closed hearings – and yet the Government’s response to the recommendations from that review was still awaited. Even now, no Government response has been forthcoming, nearly a year after the long-delayed report was published, despite the urgency attached to some of the recommendations.

What are these secret procedures? These procedures are generally referred to as CMPs – Closed Material Proceedings. 

Continue reading @ UK Human Rights Blog.

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