AAt some point in the challenge to the ban on Palestine action starting on Wednesday, the co-founder of the direct action group will be asked to leave courtroom five at the Royal Courts of Justice, along with his legal team and most other people present. Then the case will continue even without him.
When Huda Ammori returns to the room, the special counsel – a security-free barrister – who had represented her interests in her absence, will not be allowed to tell her or her legal team what evidence was presented against the Palestine action. If Ammori asks what allegations were directly made against him, the special counsel must not tell him, even if it means he will have no chance to refute them.
The nature of the secret court system is what is known as the closed materials procedure (CMP), under which legal challenges to the ban will be heard in part.
Critics of the system, which can be introduced on the application of the Secretary of State, include those who have worked within its strictures.
Angus McCullough Casey, special counsel for over 20 years, said: “CMPs are inherently and unavoidably unfair. The justification for them is that they are the ‘least unfair’ way of dealing with cases that contain relevant material that cannot actually be disclosed to the affected party because of its sensitivity and the potential to harm the wider public interest, for example, national security, if disclosed.”
Last year McCullough, who represented Shamima Begum in the CMP, said the “substantial majority” of special counsels – an undisclosed total of 25, including 16 Caseys – were not accepting any new appointments due to a “flaw in the system”, which he described as being “in recession”.
Explaining why he took such action, he said: “Even accepting the inherent unfairness, what cannot be justified is the additional unfairness caused by failures to properly support the system over many years.”
Their complaints included long delays in government response to the commissioning, delivery and review of the CMP. Additionally, the Ministry of Justice did not accept all the recommendations.
Before CMPs were expanded by statute in the Justice and Security Act 2013 (they were previously limited to immigration and deportation hearings), many judges criticized them in rulings.
Lord Steyn, whose daughter is one of three judges in the Ammori case, said: “Overall, the process completely lacks the essential features of a fair trial… (and) it involves only a sham trial.”
Lord Kerr said: “Evidence which is excluded from challenge may certainly mislead… The right to know the case made by one’s opponent and to have an opportunity of challenging it… occupies a central place in the concept of a fair trial.”
Even discussions about whether closed proceedings are necessary necessarily take place in secret, and there will be “open” and “closed” decisions at the end of the case, with subsequent proceedings similarly restricted.
Critics say that judges have a heavy responsibility for limiting the frequency and extent of CMP when facing lawyers who advocate national security.
In the Palestine Action case, material that the Home Secretary initially wanted to keep “closed” has been released “into the open”, with some of it female Chief Justice Sue Carr telling the government’s legal team after hearing an appeal against the decision to grant permission for a legal challenge: “We don’t really understand why it had to be closed.”
Their nature means that little is known about closed proceedings. But if MI5 has been consulted on a matter, it will only be disclosed to the CMP, regardless of their conclusions – favorable to the non-State party or not. Shutdown proceedings are also used by security services within organizations to protect sources.
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While there may be a smoking gun behind closed doors, this could equally be a matter of the security of MI5 operations. Given that MI5 was found to have given false evidence in another case earlier this year, there is an argument that it should face greater scrutiny.
Reasons given for the expansion of the secret courts in 2013 included preventing intelligence provided by US sources and other allies from being exposed in British courts. It was argued that this would allow more intelligence-related cases to come to court in the future, whereas previously the government was forced to compromise and pay compensation in cases such as those of Guantanamo Bay detainees because it could not disclose evidence in court.
An independent commission of legal experts, former government ministers and an ex-MI6 director said in a report published this month that the use of CMP has “increased significantly” but that it should be used “only where strictly necessary”. It states: “Judges should have greater discretion to balance the risks of disclosure against the potential unfairness caused by confidentiality, supported by a strong presumption that an indissoluble core of information should be shared with the affected party.”
Barry McCaffrey and Trevor Birney, two investigative journalists who won a landmark judgment that they were unlawfully spied on by the Police Service of Northern Ireland and the Metropolitan Police, said: “We believe that the use of CMP hearings, or indeed any secret court hearings, particularly in civil cases, is a dangerous attack on human rights protections. It is often claimed that secret courts are used only to protect national intelligence. But in our case and many others it was used to cover up deliberate wrongdoing by the state.”
Before the last-minute change, Ammori’s case was expected to be heard by Mr Justice Chamberlain, who had allowed it to proceed and was himself a – skeptical – special counsel before becoming a judge. In 2012, he wrote: “If the State alleges that my client met a terrorist at a particular time, I cannot ask him whether he was there and if so, why. So I will never know whether he had any alibi or any innocent explanation for the meeting, and nor will the court know.”
Referencing Franz Kafka’s fictional protagonist in The Trial, he said: “There are people in Britain today who, like Joseph, have no idea why they lost their case.”
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