1. Why did the UK set up a system of special advocates:

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1 THE UK EXPERIENCE OF SPECIAL ADVOCATES Sir Nicholas Blake, High Court London NOTE: Nicholas Blake was a barrister who acted as special advocate from 1997 to 2007 when he was appointed a judge of the High Court. What follows is his personal reflection on the system in the UK, how it came about and the issues it gives rise to. None of these comments are intended to be either an endorsement or a criticism of the British system, let alone making any recommendations as to how Denmark should address these issues 1. Why did the UK set up a system of special advocates: Phase 1: The system was a response to the decisions of the ECtHR in Chahal v UK and the opinion of the Advocate General and decision of the ECJ in Case C65 and C 111/95 R v Secretary of State ex p Shingara and Radiom In Chahal the ECtHr had held that Article 5 and Article 13 required:- i. An judicial assessment of the risk of torture without regard to whatever national security grounds may exist for deportation of a foreign national. ii. Detention pending deportation and appeal limited to whatever time was reasonable in the circumstances to give effect to the decision to deport. iii. An effective judicial supervision of all the grounds for detention whilst an asylum appeal was conducted; In Shingara and Radiom it was suggested that the decision of the was indicated that EU nationals who were exercising or had exercised treaty rights had a right of appeal against exclusion and deportation decisions with a minimum content of fairness including the fair hearing standards of ECHR. The legislative response was the Special Immigration Appeals Act 1997 that provided for a new judicial body SIAC and a security cleared special advocate to test the information regarding detention and removal in the absence of the detainee/deportee (or any instructions from him/her). It was recognised that there would be a small class of cases where deportation was not possible because of a risk of ill treatment, and such cases would have to be managed by prosecution or other measures within the ordinary law. One solution to the problem was the exploration of a memorandum of understanding with governments to whom the claimant was to be returned to ensure their safety on return. However, the experience in an early (pre 9/11) case, (ex p Yusuf) revealed problems about open disclosure of the state of sensitive negotiations of this issues as it became apparent that governments were unwilling 1

2 to give public assurances as to safety on return where there was an implicit recognition that their security forces had behaved improperly. In the period from October 1998 to October 2001 attempted deportations before failed because of Art 3 issues, or evidentially. 2. Phase 2: The Response to September 200. Derogation from Article 5 After 9/11 the UK derogated from Art 5 ECHR to the extent that it permitted indefinite detention of those who it sought to deport but were unable to do so because of Art 3 concerns. This class of cases could be called internment cases as detention without criminal trial was envisaged and without any prospect of deportation proceedings. There was six monthly judicial supervision by SIAC of the necessity of detention. In 2004 in the case of A v SSHD (No 1) the House of Lords declared the derogations were unlawful in that they illegitimately discriminated between foreign nationals suspected of support for terrorism and British national so suspected. In A No 2 the House of Lords ruled that the executive could not make uses in closed open session of any material which it was probable had been obtained by torture Phase 3: Control orders and deportations The government response to this judgment was: i. control orders whereby severe restriction but not deprivation of liberty were to be permitted against anybody (citizen or foreigner) subject to appeals and regular reviews by SIAC and special advocates; ii. pursuit of agreements with states of intended deportation, whereby evidence of secret negotiations for assurances were to be dealt with in closed session with special advocates. As to i. there is a continuing debate as to:- i. whether Article 6 fair trial standards are engaged and if so whether the criminal or civil standard applies and ii. if so or in any event must there be a core minimum standard of disclosure of the central allegations in the case to person concerned As to ii there has been debate as to:- i. whether a flagrant denial of a fair trial under Art 6 is required before removal is incompatible with ECHR (assuming there to be no real risk of a violation of Article 3 and ii. if so what is a flagrant denial of fair trial rights. The system of special advocates has been the subject of : i. critical scrutiny by the House of Commons as to the workings of the system 2

3 ii. iii. iv. an appraisal by the Supreme Court in Canada that the UK system was better than a purely ex parte judicial review of detention and deportation (see Charkaoui v Canada) a critical review by the ICJ Eminent Persons panel the subject of the first Strasbourg ruling on the SA system in A and others v United Kingdom February 2009 that gives the history of the UK experience in some detail (dealing with the internment phase of this history). Phase 4: The expansion of the system SAs have been used in similar proceedings for proscription or organisations as terrorist under primary legislation. They have been used in security tribunal cases The UK Government has indicated that they could be used in asset freezing and confiscation cases to support international rules to suppress terrorist fund raising. Outside the field of national security, common law powers to promote fairness by asking for a Specially Appointed Advocate (SAA) to assist in employment cases, parole board, family, and sensitive judicial review proceedings have been made. The Court of Appeal has used the SA procedure in the exercise of its common law powers but the House of Lords on appeal have been unwilling to examine the closed material in the absence of the person affected. The CA has recently held that SAAs may be required to assist the court in considering challenges to a refusal to grant citizenship. A number of other jurisdictions have expressed interest in the UK model: Canada, New Zealand, Hong Kong. 3. The perceived need for deviation from normal fair trial models (criminal or civil) Security services who have a prominent role in risk assessment of terrorist threats operate in way that does not lend itself to the production of evidence for use in court proceedings. Their concerns are not proving a case to a criminal or civil standard, but identifying sources of risk and preserving information flows to ensure future risks are identified. Information is likely to come from:- i. human source reporting ii. technical means iii. foreign liaison 3

4 Each are highly vulnerable to loss if disclosed directly or indirectly. Nevertheless a security service assessment of risk based on a combination of a number of strands of information gathering over a period of time may be highly persuasive of reasonable grounds to suspect a person is concerned with support for terrorist activity of a potentially deadly variety. Further in the deportation cases, it is assessed that certain communications between foreign states as to measures to secure safety on return are highly sensitive in the field of foreign affairs and prevent disclosure to the detainee. In the UK the Bar takes the position that what cannot be disclosed to the client should not be disclosed to the lawyer in the absence of specific instructions from the client that if acted on may run the risk of undermining the professional relationship. A disclosure on an advocate only basis has not been developed in this area of law therefore. In any event the security services would not be content with disclosing highly sensitive information to an advocate who is not security vetted on the basis of their professional obligations as a client. Generally the larger the circle of people to whom material is disseminated the great the risk of onward disclosure or loss of future data. There is further the question of future contamination ie data revealed to advocate A for defence of person B will be in the advocate s knowledge if called to defend person C who may be connected with the material. 4. What can the Special Advocate do? i. The SA may meet with a person whose interest s/he represents up until the moment of the service of closed material for :- a. a bail application or b. trial of the issue whether there is a reasonable basis for suspicion and obtain some relevant background information fro the open case (if any) as to issues that experience suggests may be relevant to the assessment against him/her. ii. The SA will contest the denial of bail on the basis that the closed information is insufficient to deprive a person of liberty. iii. The SA will argue that the information to be relied on in closed can be disclosed in whole or in part in one form or another without risk of endangering national security or foreign relations by jeopardising the manner in which the security service obtains information. In particular edited gists may inform the person of the case against him/her. iv. The SA will argue that there has been insufficient disclosure to the SIAC and the SA of material open or closed made relevant in the proceedings that may serve to undermine the case of the SSHD against the person concerned. 4

5 v. The SA will object to any reliance on evidence that may well have been produced by torture. vi. The SA will test the assertions of oral evidence by the SSHD in cross examining witnesses as to the basis for their assertions. vii. The SA will submit that the material is insufficient to sustain the reasonable grounds for suspecting the person to be the risk alleged. viii. The SA may pursue in closed any observations made by the detained person about the case against him or her (either in the pre disclosure meeting or in open session). The SA will normally be unable to call any witnesses in support of a case as this may alert others to the closed case against the person. ix. The SA will review the closed grounds of the SIAC in dismissing an appeal and promote an appeal (by inviting the person to appeal) on the basis of any arguable error of law in assessing the closed case. 5. Have SAs achieved any results in the cases heard over the past 10 years? Given the low standard of proof (reasonable grounds for belief) and the absence of any demanding test for its satisfaction, successful appeals by using SAs have been very few. Since Phase 2 and the response to 9/11 and the UK involvement in Iraq in 2003, I believe success has been limited to the following cases: i. success in an individual appeal in a deportation case on the grounds that the person concerned fell outside the scope of the legislation; ii. success in another appeal that the grounds for action did not amount to national security as opposed to criminality iii. a successful group appeal that Libya was not a safe destination for suspected Islamists iv. A successful POAC appeal by the Iranian People s Mojahadin that there were no reasonable grounds to proscribe them as terrorists v. A partially successful asylum appeal on the basis of flawed assessment by SIAC of secret foreign relations material vi. There have been successful submissions on bail, further disclosure and ancillary matters. It may be relevant to ask whether absent the SA system more cases for deportation, exclusion, proscription or restriction of liberty might not have been brought? It is likely that the SA system at least in respect of control orders will require overhaul in the light of the Strasbourg judgment in A v others. From the individual outcomes it would appear that the SA system can be compatible with ECHR standards if there is a sufficiency of disclosure. There is likely to 5

6 be tension between a judicial consideration of what is considered sufficient for a person to respond to allegations, and what can be disclosed without the executive considering that there is a risk to a vital national interest. The comparative case law reviewed is to similar effect (SEE EXTRACTS) 6. The alternatives to the SA system Some of the possibilities discussed in the UK include i) Modification of the rules of criminal procedure to ensure more successful prosecutions of terrorist support cases. The Government have suggested even closed trials and dilution of the standards of proof or non jury trials in such cases. ECHR standards may prevent some of this although the protection of jury trial is unlikely to be a fundamental right. ii) Restriction of the system to immigration deportations where Strasbourg has suggested that Art 6 standards are not generally applicable. iii) A restriction of security service action to monitoring suspects rather than taking executive action against them, with the risk that a suspect could evade attention and carry out terrorist activity iv) A general derogation from Art 5 standards whilst the threat of islamist extremism is perceived to be high v) A withdrawal from ECHR altogether and thus expulsion of foreigners and secret hearings against others without international recourse. 7. Conclusions i. There is a real tension between the protection of citizens from serious harm by those who may threaten their safety and due process and human rights standards in respect of dealing with:- a. EU nationals with community rights of residence; b. Non-EU foreigners with no rights of residence c. Citizens who support terrorist movements directed against their own nationals ii. It may be asked if this threat significantly greater then the risk of not being able to sustain a successful prosecution against dangerous criminals or the risk of releasing people considered dangerous from prisons or mental hospitals? iii. A system of secret justice is plainly open to abuse and injustice, particularly if adopted in widening areas of dispute resolution. iv. SAs are now trained in the workings of the security services, build up a certain degree of experience as to how the service works and what to look for and why. It could be said that they can provide a certain level of protection against arbitrary decision making. 6

7 EXTRACTS FROM A v UK Strasbourg February 2009 Comparative jurisprudence: 111. In Charkaoui v Minister of Citizenship and Immigration [2007] 1 SCR 350, McLachlin CJ, for the Supreme Court of Canada, observed ( 53): Last but not least, a fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respond to it. That right was not absolute and might be limited in the interests of national security ( 57-58) but ( 64):... The judge is therefore not in a position to compensate for the lack of informed scrutiny, challenge and counter-evidence that a person familiar with the case could bring. Such scrutiny is the whole point of the principle that a person whose liberty is in jeopardy must know the case to meet. Here that principle has not merely been limited; it has been effectively gutted. How can one meet a case one does not know? 112 In Hamdi v Rumsfeld 542 US 507 (2004), O'Connor J, writing for the majority of the Supreme Court of the United States, said (p. 533): We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decision-maker [authority cited]. 'For more than a century the central meaning of procedural due process has been clear : Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified...' These essential constitutional promises may not be eroded. The meaning of Art 5(1) 171. It is, instead, clear from the terms of the derogation notice and Part 4 of the 2001 Act that the applicants were certified and detained because they were suspected of being international terrorists and because it was believed that their presence at liberty in the United Kingdom gave rise to a threat to national security. The Court does not accept the Government's argument that Article 5 1 permits a balance to be struck between the individual's right to liberty and the State's interest in protecting its population from terrorist threat. This argument is inconsistent not only with the Court's jurisprudence under sub-paragraph (f) but also with the principle that paragraphs (a) to (f) amount to an exhaustive list of exceptions and that only a narrow interpretation of these exceptions is compatible with the aims of Article 5. If detention does not fit within the confines of the paragraphs as interpreted by 7

8 the Court, it cannot be made to fit by an appeal to the need to balance the interests of the State against those of the detainee. Conclusions on Art 5(4) 217. Balanced against these important public interests, however, was the applicants' right under Article 5 4 to procedural fairness. Although the Court has found that, with the exception of the second and fourth applicants, the applicants' detention did not fall within any of the categories listed in subparagraphs (a) to (f) of Article 5 1, it considers that the case-law relating to judicial control over detention on remand is relevant, since in such cases also the reasonableness of the suspicion against the detained person is a sine qua non (see paragraph 204 above). Moreover, in the circumstances of the present case, and in view of the dramatic impact of the lengthy - and what appeared at that time to be indefinite - deprivation of liberty on the applicants' fundamental rights, Article 5 4 must import substantially the same fair trial guarantees as Article 6 1 in its criminal aspect (Garcia Alva v. Germany, no /94, 39, 13 February 2001 and see also see Chahal, cited above, ) Against this background, it was essential that as much information about the allegations and evidence against each applicant was disclosed as was possible without compromising national security or the safety of others. Where full disclosure was not possible, Article 5 4 required that the difficulties this caused were counterbalanced in such a way that each applicant still had the possibility effectively to challenge the allegations against him The Court considers that SIAC, which was a fully independent court (see paragraph 91 above) and which could examine all the relevant evidence, both closed and open, was best placed to ensure that no material was unnecessarily withheld from the detainee. In this connection, the special advocate could provide an important, additional safeguard through questioning the State's witnesses on the need for secrecy and through making submissions to the judge regarding the case for additional disclosure. On the material before it, the Court has no basis to find that excessive and unjustified secrecy was employed in respect of any of the applicants' appeals or that there were not compelling reasons for the lack of disclosure in each case The Court further considers that the special advocate could perform an important role in counterbalancing the lack of full disclosure and the lack of a full, open, adversarial hearing by testing the evidence and putting arguments on behalf of the detainee during the closed hearings. However, the special advocate could not perform this function in any useful way unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate. While this question must be decided on a case-by-case basis, the Court observes generally that, where the evidence was to a large extent disclosed and the open material played the predominant role in the determination, it could not be said that the applicant was denied an opportunity effectively to challenge the reasonableness of the Secretary of State's belief and suspicions about him. In other cases, even where all or most of the underlying evidence remained undisclosed, if the allegations contained in the open material 8

9 were sufficiently specific, it should have been possible for the applicant to provide his representatives and the special advocate with information with which to refute them, if such information existed, without his having to know the detail or sources of the evidence which formed the basis of the allegations. An example would be the allegation made against several of the applicants that they had attended a terrorist training camp at a stated location between stated dates; given the precise nature of the allegation, it would have been possible for the applicant to provide the special advocate with exonerating evidence, for example of an alibi or of an alternative explanation for his presence there, sufficient to permit the advocate effectively to challenge the allegation. Where, however, the open material consisted purely of general assertions and SIAC's decision to uphold the certification and maintain the detention was based solely or to a decisive degree on closed material, the procedural requirements of Article 5 4 would not be satisfied. 9

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