To have the basis of a case against you withheld tests the very idea of a fair trial – yet secrecy is seeping across the system
One of the most alarming trends since 9/11 has been an ever-expanding fixation with secrecy in British courts. And at the heart of this is the creeping use of secret evidence: you face a case against you, but the very basis for it is withheld. It is a practice that is entirely antithetical to our most ancient and venerable concepts of a fair trial.
The problem with this debate is that it can go only so far. The government more or less agrees that secrecy is undesirable in legal proceedings, but insists that keeping evidence closed represents the lesser of two evils, and is a necessary tool in the battle to protect national security.
It is difficult to challenge this position, for obvious reasons. Because the material is secret, its contents are immune from outside scrutiny. Neither the person subject to the proceedings nor, in some cases, the court itself – let alone the press – have any idea what this evidence contains. Meaningful engagement with the government's position is difficult or, in most cases, impossible.
There are exceptions, however, when we get glimpses into the quality of evidence that is being kept secret. One was offered by high court judge Sir Robert Owen last week. The court was considering the case of an Egyptian man, known by the initials HAY, whose finances were frozen when the government was notified of his "designation" by the ominously named "1267 Committee" – a UN committee established to identify suspected al-Qaida members.
The effect of the freezing order on HAY's life was described by the court as "draconian": he no longer has access to his bank account and cannot buy food or clothing. For a third party to provide him with money would be a criminal offence.
But, as Owen's judgment makes clear, not even the government has any confidence in the evidence – kept secret – on which the 1267 Committee's decision was based. The only insight his lawyers, and the public, have into the quality of this evidence is that, having conducted its own review, the Foreign Office agrees the sanctions against HAY should be lifted.
For the government to be on the side of the suspect in challenging the validity of secret evidence is, however, rare. In most cases, it is the government that has produced the secret evidence, and the only insight third parties – including the suspects – can hope to get is from their lawyers, who are allowed to see it.
Clive Stafford Smith, who has been privy to secret evidence in the cases of Guantánamo Bay detainees he has represented, says he can make the case against this material using information that is in the public domain.
"After seven years of interrogating people in Guantánamo Bay," Stafford Smith says, "they have whittled 779 prisoners down to 219 – supposedly the worst of the worst. But judges in the US have so far acquitted 84% of the prisoners we have brought before the court."
Stafford Smith's strongest claims against secret evidence, however, can't be discussed, because the evidence is secret. He believes that the motive for keeping much of this material outside the public domain is not to protect national security, but to protect the government's own agents from viable allegations of serious criminal wrongdoing – a claim backed up by reporters who also, not surprisingly, cannot reveal what they have seen.
Journalists are severely limited in their access to genuinely secret material, but special advocates are in the unique position of experiencing both sides of the cases that take place behind closed doors. These special advocates – often barristers with a background in human rights law – have been among the most vociferous opponents of the use of secret evidence.
Ian Macdonald QC, who famously withdrew from his role as a special advocate in 2004, said he had initially signed up to the scheme believing it would allow those whose cases involved necessarily secret evidence to have a fair hearing.
"My role was altered to provide a false legitimacy to indefinite detention without knowledge of the accusations being made and without any kind of criminal charge or trial," Macdonald said at the time. "It is a totally bizarre, ridiculous and odious system."
In 2006 Andrew Nicol QC, now a high court judge but then a special advocate, noticed that one piece of evidence was being used to support two contradictory arguments in separate cases at the Special Immigration Appeal Commission. And in 2007 another special advocate revealed that evidence deemed "highly sensitive" had in fact been published on the internet a year earlier.
It is hard to imagine such basic mistakes being made in open court, given the inevitability of scrutiny by the defence and the press. Not that judges haven't provided some gems of insight into the failings of the security services themselves. Last year a judge quashed a control order, finding that MI5 had assumed "guilt by association".
Claims that this sloppiness is the tip of the iceberg can only be speculation, but these cases do not inspire confidence. The errors made by the security services seem even less sophisticated when rolled out across the legal system, with a report by civil rights group Justice last month describing the use of secret evidence in parole board hearings to deal with what should have been straightforward issues of witness protection.
Secret evidence shows no sign of slowing its creep across the legal system, but cases of suspected terrorism remain at the centre of the problem. Ironically, some of the highest-profile cases are likely to be among the first listed at the UK's new supreme court when it opens for business in October.
The legal teams representing these men – who still have no idea why their lives have been taken under government control – are likely to be greeted by phrases from the Magna Carta when they arrive. Tokens of wisdom such as "To no one will we deny or delay right or justice" are etched into the glass doors of the newly renovated building which, the government says, was specifically designed to inspire an atmosphere of justice, transparency and openness.
The judiciary has neither produced this secret evidence nor justified its use, so it would be unfair to dismiss the new building as meretricious. But the government may well have some explaining to do if it is to continue its push for transparency and secrecy simultaneously, without giving the concept of window-dressing a whole new meaning.