Tuesday, October 21 2014

Government proposals to extend mandate for holding secret trials


The Daily Mail today covers proposals by the coalition Government to extend the mandate for secret trial hearings which would give the Government powers to hold trials which are deemed ‘sensitive’ or a risk to ‘national security’ behind closed doors, and to withhold evidence held against defendants from them and their lawyers.

The move would, the Daily Mail argues, jeopardise “a fundamental principle of Britain’s open justice that citizens who appear before the courts should be able to know and to challenge the claims against them”.

From the Daily Mail:

“The historic principle that justice should be seen to be done is threatened by hugely controversial plans to allow secret hearings, ministers are being warned.

“Proposals for sweeping new powers which would allow the Government to withhold any evidence it deems ‘sensitive’ from an open civil court hearing or inquest are facing a chorus of criticism.

“Former director of public prosecutions Ken Macdonald yesterday attacked the Government’s proposal for so-called ‘closed material procedures’ in civil courts, an attempt to prevent sensitive claims for damages being aired in open hearings.

“Critics say the legislation has been ‘dictated’ by the security services following an embarrassing string of cases brought against them by former terrorist suspects who claimed they had been subjected to torture.

“In the case of Binyam Mohamed, a former Guantanamo Bay prisoner who sought to sue the Government for complicity in torture, the Government tried to conceal documents disclosing his alleged mistreatment but were overruled by the courts.

“There is increasing concern that Justice Secretary Kenneth Clarke’s proposals will mean ministers being able to prevent a huge range of cases – from military inquests to police and medical negligence claims – being held in public.”


The director of civil rights group, Liberty, Shami Chakrabarti has described the powers as a “shameless attempt to cover up abuses of power” and stated that the powers “would exclude the press, public and victims from seeing justice done.”

The article continues, “Under the proposals, ministers will be able to order not only that a hearing is conducted behind closed doors, but also that claimants are denied access to government evidence or witnesses.

“Legal experts in the field appear increasingly uneasy. Lord Macdonald, QC, said the plans would put the Government ‘above the law’ and must be reconsidered.

“ ‘After a decade in which we have seen our politicians and officials caught up in the woeful abuses of the war on terror, the last thing the Government should be seeking is to sweep all of this under the carpet. However, that is exactly what their disastrous secret justice proposals are likely to do.

“ ‘We cannot afford to sleepwalk into a system of secret courts…We should not sacrifice Britain’s open and transparent justice system simply to protect politicians and their officials from embarrassment.’”


The article claims that “57 out of the 69 current special advocates have indicated they do not agree with the plans.”

“Helen Mountfield, QC, a serving special advocate, said: ‘Special advocates were never intended as a substitute for a fair trial and the inherent weaknesses of this system will leave a justice gap.’”

“A Ministry of Justice spokesman said: ‘We have a growing problem in this country where individuals are alleging Government wrongdoing but the courts do not have the tools they need to get to the bottom of the matter.

“‘The reason for this is that the evidence on which the case rests is either intelligence material given to us by our allies – which we have promised not to reveal – or it is material which could reveal the identity of sources, or damage our ability to keep the public safe.

“‘This means that the Government is unable to defend its actions if the material has to be given in open court. It means that the claimants are left without any clear judgments by a judge based on all the relevant information, and most importantly it leaves the public with no independent judgment by a court on very serious matters.

‘We are therefore consulting widely on our proposal to allow sensitive evidence in this small number of cases to be argued before a judge in a closed court with the safeguards needed to protect public safety.’”

The Daily Mail editorial today rightly argues that the proposed changes are tantamount to “the sort of ‘justice’ associated with totalitarian regimes through the ages?

“The truth is that Mr Clarke’s plans are so glaringly open to abuse that they have no place in a civilised country’s legal system.

“In many cases, the Government itself is being sued. So how can it possibly be right that the Home Secretary, as a self-interested member of that Government, should have the power to decide that the hearing must take place in secret?”









Last Updated on Wednesday, 23 May 2012 14:36

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