Control Orders: Special Advocates’ Evidence before the Joint Committee on Human Rights, February 3, 2010


The Houses of ParliamentOn February 3, 2010, the Joint Committee on Human Rights, comprising members of the House of Commons and the House of Lords, met to hear oral evidence on “Counter-Terrorism Policy and Human Rights: Control Orders” from two solicitors representing control order detainees, and three Special Advocates representing the detainees during discussions of secret evidence in court. The hearing took place two days after Lord Carlile, the government’s independent reviewer of terrorism legislation, issued his fifth report on the use of control orders (PDF), concluding that “The control order system remains necessary, but only for a small number of cases where robust information is available to the effect that the suspect individual presents a considerable risk to national security, and conventional prosecution is not realistic.”

In this second of two articles reproducing the oral evidence, which was originally made available here, Special Advocates Helen Mountfield, Angus McCullough and Thomas de la Mare spoke with considerable openness about the difficulties of their work, and also described their experiences of what has — or has not — happened since the Law Lords ruled last June, in the case of AF and others, that imposing control orders breaches Article 6 of the European Convention on Human Rights, which guarantees the right to a fair trial, because a suspect held under a control order is not given “sufficient information about the allegations against him to enable him to give effective instructions to the special advocate assigned to him.”

Oral Evidence
Taken before the Joint Committee on Human Rights on Wednesday 3 February 2010

Members present:
Mr Andrew Dismore, in the Chair
Bowness, L
Dubs, L
Falkner of Margravine, B
Onslow, E
Dr Evan Harris
Fiona Mactaggart
Mr Virendra Sharma

Witnesses: Ms Helen Mountfield, Barrister, Matrix Chambers, Mr Angus McCullough, Barrister, One Crown Office Row, and Mr Thomas de la Mare, Barrister, Blackstone Chambers, gave evidence.

Q33 Chairman: We have now been joined by our second panel of witnesses: Helen Mountfield, who is a practising barrister at Matrix Chambers and acts as special advocate for control order cases, Angus McCullough, who is a barrister at One Crown Office Row, Special Advocate, and Thomas de la Mare, a barrister from Blackstone Chambers, also an experienced Special Advocate. Welcome to all three of you; thank you for coming. Is there anything you would like to say before we start?

Mr McCullough: No, I do not think so, thank you, except thank you for inviting us.

Q34 Chairman: Perhaps I can start where I left off with the solicitors. Do you think the Home Office carried out a thorough review of all the material which had been relied on for the existing control orders to ascertain whether they should give you further disclosure?

Mr McCullough: I think it is probably difficult to comment from the perspective of an individual special advocate who sees only the small number of cases that one is involved in personally. Of the three cases that found their way to the House of Lords in the AF decisions, two were abandoned by the Government — the control order was abandoned — and the third the Government is seeking to maintain, and the substantive hearing to determine that has yet to occur. In terms of the review of the material the Government seems to take an approach that all the closed material is relied upon in seeking to obtain a control order and they await the decision of the courts with the involvement of the special advocates as to what it is they can continue to rely on to uphold that control order in the courts, which — and it is a slightly oblique way of answering your question — seems, at least from my individual perspective, to be the approach that has been taken following AF.

Ms Mountfield: I have one outstanding post-AF control order, and when AF was decided a letter was written to say that the evidence would be reviewed to consider what ought to be made open. If that happened I am slightly surprised. I would say a minimalist approach was taken if it did happen, but what in fact then happened was that that control order was revoked and replaced by a so-called light touch control order. There has still been no more disclosure. It is being argued that you do not need disclosure, that AF does not apply to more limited controls, and that argument failed in the High Court and is going to the Court of Appeal.

Mr de la Mare: I was involved in one of the appeals that went to the House of Lords and then was remitted to the High Court afterwards. My impression was that the Secretary of State’s attitude was that it was for the special advocates to make the running as to what should be disclosed in relation to the evidence base and not primarily for the Secretary of State to review the evidence base and make proposals with a view to disclosing certain information. Indeed, the position was yet more extreme. The Secretary of State was unwilling to comment as to whether or not they would exercise their decision to withdraw the evidence and the allegations in question. One will need to make a decision upon that until such time as the court has ruled finally as to the totality of the evidence and what should be disclosed, and only then would the Secretary of State decide whether or not to proceed with the case at all, whether or not to drop certain allegations or whether or not to make disclosure. As it turned out, after an extensive review by the special advocate of the evidence and submissions made in relation to that, the Secretary of State then decided that he would drop the control order in question. Their attitude is, “You make the running”.

Q35 Mr Sharma: How has the decision of the House of Lords in AF affected the Government’s position in current control order proceedings?

Mr McCullough: I think the proof of the pudding is still being eaten, as it were. A number of the control orders have been voluntarily revoked by the Government, a number have been quashed or revoked by the courts, and a number are still awaiting the court’s determination. As far as I am aware only one control order since the House of Lords decision in AF has been upheld by the courts in the face of a challenge.

Ms Mountfield: What AF decided was that somebody had the right to know the essence of the case against them. What that means in practice is quite difficult to determine in an individual case and I think the Home Office has taken quite a minimalist view, headline allegations only: “You are involved in terrorist fund-raising”, or whatever, to take a hypothetical example. If you look at the decision of the European Court of Human Rights and those in the UK, that suggests a greater degree of detail than that is needed. In that case they give the example that if you are going to say somebody has undertaken terrorist training you need to tell them when and where, and that is not the level of detail, as I perceive it, that is being given at the moment.

Mr de la Mare: I think it is important to understand that control order cases do not fit one particular type. They are potentially very different. At one end of the spectrum you have a case which is effectively a glorified intelligence assessment based upon a disparate series of sources and information intended to build a picture. That is described in various open materials as “mosaic” type cases. There is no centrepiece necessarily to the evidence against an individual in those types of cases. It is a variety of different strands woven together to build a case. At the other end of the spectrum you have cases that are effectively proxies for criminal prosecution, where there may be one grandstand allegation and effectively that allegation may even be substantially in open and you have evidence that can or cannot be adduced for those reasons. My judgment is that “mosaic” type cases are the ones that are being affected most by the House of Lords judgment because in those cases each little chink of the mosaic is an allegation and the logic of the House of Lords ruling is that each bit of that mosaic therefore must be disclosed in some form, whereas the cases that are proxies for criminal prosecutions — and I believe AF is a case nearer that end of the spectrum — it is possible to get closer to saying, “Disclose the allegations but not the evidence underpinning it”. It is very important to realise that different types of case are structured in different ways and may lead to different conclusions under the AF analysis.

Q36 Chairman: What proportion of the control orders do you think are these jigsaw/mosaic type things and what proportion are the one big thing that is the surrogate prosecution?

Mr de la Mare: That is very difficult to answer, being myself only a little chink in the wider mosaic. It is a very impressionistic matter but I suspect the great preponderance of cases tend to be mosaic cases rather than proxy criminal prosecution cases.

Q37 Mr Sharma: Is the Government’s approach to disclosure since the decision in AF in keeping with the spirit of the decision in your view?

Mr McCullough: It is probably no surprise that the Government seeks to restrict the impact of AF and the arguments in disclosure hearings whereas the special advocates argue for a broad approach and as much detail as possible requiring to be disclosed if an allegation is to be relied upon, so I suspect the Government would say that they are reflecting the true spirit of the judgment and, likewise, those on the other side of the argument say they are as well, so it is probably a debate. No is the straight answer to your question from the point of view of the special advocates.

Q38 Chairman: And those across the table?

Ms Mountfield: Yes.

Q39 Mr Sharma: Consensus there. Can you explain what a “light touch control order” is?

Ms Mountfield: An ordinary control order tends to have somebody required to remain at home for perhaps between nine and 13 hours a day, not to have internet access, not to have visitors without prior approval and so on. The light touch control orders no longer have that house arrest element in them but they restrict people from travelling abroad, from having more than one mobile telephone, from going away from home for a night without giving 48 hours’ notice, that sort of control.

Q40 Baroness Falkner of Margravine: Are they allowed to have visitors in light touch regimes?

Ms Mountfield: I cannot immediately remember and I am not sure I am aware of all the light touch control orders. They are less restrictive but certainly in my view still sufficiently restrictive to have a serious effect on people’s everyday lives.

Q41 Chairman: I think it was you, Angus, who said that you had a control order that was dropped after AF.

Mr McCullough: I think it was Tom.

Q42 Chairman: Is that right?

Mr de la Mare: Correct.

Q43 Chairman: We know that a couple were dropped after AF altogether. What happened to the two controlees concerned? Are they simply not subject to any controls at all or are they subject to surveillance?

Mr de la Mare: I must admit I am not entirely au fait with the current position. There has been a fairly protracted debate before Mr Justice Silber as to whether or not the order in question should be technically revoked or quashed. A similar debate has occurred in another case. That has implications for any potential criminal proceedings brought in relation to alleged breaches of the control order and it may have cost implications. I may be incorrect but I believe that the control order has simply been revoked and nothing put in its place.

Q44 Chairman: So as far as these two were concerned, if they were a threat to public safety they are not subject to control orders. They are still a threat to public safety, I suppose, with no controls over them, so it begs the question of whether the control order was necessary in the first place. Could I ask you how AF is being used in the lower courts now, because you have got this rather bizarre comparison between what the law says in the statute and how the law is applied by the courts, which seem to be mutually exclusive. Is the approach of the lower courts creating any practical problems for you?

Mr McCullough: I have already alluded to the Government’s basic approach, which is to rely on everything without taking into account AF and then leave it to the courts to tell them what they are allowed to rely upon as a result of AF. I think it is fair to say that the court’s approach is still bedding down and no universal approach as yet has emerged. There is a strand of judicial thinking which applies what has been termed the iterative approach whereby a bit of disclosure is given to a controlled person, the idea being that that may be enough for them to respond effectively and give effective instructions to their own lawyers and the special advocates, and if it turns out that it is not then to give a bit more, which I think leads to two difficulties. One is of a practical nature, which is that there is not really time in the already protracted court procedure to accommodate an iterative approach, and you find yourself up at the substantive hearing having then to re-address disclosure issues. The second difficulty is probably one of principle, as to whether it is really fair to adopt this iterative approach, to require a controlled person to respond to part of the case before letting him know the full part that he would ultimately be entitled to. I think those are the sorts of practical problems that are currently being grappled with.

Mr de la Mare: It is worth emphasising that the protracted history of these cases means that there are certain difficulties in interpreting what is happening in the particular cases for this reason. Almost all of the cases which have been remitted for reconsideration had at an earlier stage contested hearings at which, either under the pre-MB test or under the MB test, the question was first asked, “Can this material be disclosed without there being damage to the public interest?”, and invariably the answer in relation to the remaining material is that it cannot be disclosed without damage to the public interest in the view of the Secretary of State. [MB was an April 2006 ruling, in which Mr Justice Sullivan concluded that the imposition of a control order was incompatible with article 6 of the ECHR. In August 2006, it was overturned by the Court of Appeal]. Then, when one comes to apply the AF test, which is a separate, over-layering test of fairness that seeks to say, “Notwithstanding the damage to public interest that would be caused by this material, does fairness require it to be disclosed?” The inevitable consequence when the court says, “Yes, it must be disclosed”, is that the Secretary of State withdraws the allegation in question rather than disclosing material which will cause damage to the public interest. That is why, from the perspective of a controlee, you have this scenario where it seems as if nothing is happening, and indeed from their perspective nothing is happening, because what is the most that the special advocates achieve is a reduction of the evidence base rather than concrete disclosure of the allegations in question to the controlee, and in the most extreme example the net result is the evidence base collapses and the order is revoked. One can well see why such a process, which is potentially very protracted, particularly if the iterative approach is adopted, leads to frustration from the perspective of people outside the process. They see nothing concrete happening.

Q45 Baroness Falkner of Margravine: What you say is rather depressing, but, anyway, staying with the procedural rules, has the rule change which permits special advocates to adduce evidence made any difference in practice to your ability to ensure fairness? You have more or less all touched on that but is there anything else you want to add to that?

Mr McCullough: The answer is a resounding no. No special advocate, as far as I am aware, in any case, notwithstanding the rule change, has ever been in a position to adduce evidence him or herself.

Q46 Baroness Falkner of Margravine: How effectively are you able to challenge the Government’s objections to disclosure in these closed cases?

Ms Mountfield: AF has made it easier to have a principle basis for making such a challenge but, in terms of challenging the Government’s argument that disclosure would damage national security, we are not in a position to do it, because we do not have access to expertise and because that is, I think invariably, dealt with on a class basis, disclosure of the fact that a particular kind of intercept is possible and may damage the public interest. There is no question of what is or is not damaging in this particular case and therefore it really is not something you are in a strong position to rebut.

Mr de la Mare: There is only a limited number of tools in your arsenal in that context. One is finding material that has already been put into the public domain in another context, say, another criminal prosecution, even in another country in a related case. Occasionally that works, and the other main technique is to seek gisting of the allegation in question, which is to try and divorce the substance of the allegation from the supposedly sensitive detail that surrounds it, and that, whilst it may produce more information, nevertheless may result in an allegation of such vagueness being disclosed as to merely compound the frustration of those sitting outside the process because it does not necessarily leave them any the wiser.

Ms Mountfield: “Gisting” may be a verb we made up; I do not know.

Mr de la Mare: We have been using “gisting” for quite a long time.

Q47 Baroness Falkner of Margravine: Lord Carlile’s report says that improved training and closer co-operation should resolve the concerns the special advocates raised about the fairness of control order proceedings. To what extent do you think his report addresses the concerns you expressed to him about the limitations in your functions?

Mr McCullough: The particular problem that Lord Carlile refers to as having been highlighted to him by the special advocates is, of course, one of communication. Following receipt of the closed evidence the special advocate is prohibited from communicating with the open representatives of the controlled person himself other than in writing and through the court and in the full knowledge of the Secretary of State. That is the effect of the rules, both the SIAC rules in that context and Part 76 in the control order context. That feature of the rules, as this Committee will be well aware, has been the subject of criticism not only from this Committee but other bodies as well, and it remains a profound concern of the special advocates. The position has, at least in theory, been slightly alleviated by the House of Lords decision in AF, but the existing prohibition in our view — and I think, for reasons I will explain in a moment, that I can speak reasonably collectively here — remains a significant constraint on the special advocates’ ability to discharge their role effectively even in control order proceedings. And, of course, the AF principle does not, at least currently, apply in SIAC proceedings, so it is even more acute there. I was one of four special advocates that went to see Lord Carlile last October and we were very grateful to him for seeing us and we raised a number of concerns, of which this was a major one. Lord Carlile expressed himself to be sympathetic to our concern and asked for a note to be produced setting out our position in writing, and another special advocate, Martin Chamberlain and I produced a note which was circulated around the special advocate community, as it were, and subscribed to by, I think, 23 special advocates, and I think it is fair to say that the names appended to that note consist of almost all the special advocates who are regularly appointed or have significant past experience, although the total number of special advocates is rather greater. Many of those do not have significant experience, or indeed have possibly never discharged the role at all. It is, therefore, I think, a reasonably collective view that is represented by this concern and the Committee may have been supplied with a copy —

Q48 Chairman: That is my next question because I do not think we have.

Mr McCullough: Your secretary will be in a position to supply it. There is no reason why you should not have it. It is fair to say that Lord Carlile’s fifth report accurately reflects the basis of our concern in this respect in the passage which starts at paragraph 130, and the specific proposals put forward by the special advocates are recorded by him at paragraph 139, but I have to say that we are bemused by his conclusion at paragraph 140, having expressed himself to be broadly sympathetic to our concerns or complaints. He says that “improved training and closer co-operation should resolve the concerns recorded above”. I do not know if that is concerns about leakage of sensitive material or the special advocates’ broader concerns, but, as we see it, and as is apparent from the nature of the concern recorded by Lord Carlile himself, the problem is hardwired into the current rules, so we do find it hard to understand why Lord Carlisle concludes by doubting that any rule changes are necessary. In our view rule changes are necessary in order to address this problem and we have made our suggestions relatively modest and unambitious, as we see them, as to ways in which the present system could and should be relaxed.

Q49 Chairman: While you are on that part of the Carlile report, you will see the recommendations we made at paragraph 136 previously, which we subsequently repeated and none of those were accepted. [In the relevant passage, the JCHR recommended in 2007, “In our view, it is essential, if the Special Advocates are to be able to perform their function, that there is greater opportunity than currently exists for communication between the Special Advocates and the controlled person”]. Do you think those recommendations still stand?

Mr McCullough: I do, and you will see that we had them very much in mind in formulating our own proposals, so we would respectfully entirely echo those views. Indeed, the way in which the Committee put it, I think on the last occasion, was that it was essential that the existing rules should be relaxed. I am sorry, I have answered at some length, but there are two further points in relation to that which it may be worth drawing to the Committee’s attention. The first is that notably a less restrictive regime than that which is enshrined in the SIAC rules and in the control order rules appears to apply in the context of the use of special advocates in employment tribunal proceedings.

Q50 Chairman: We will come on to non-control orders later on.

Mr McCullough: It is simply by way of demonstrating that in that context, where material of probably equal sensitivity may be involved, it has not been thought necessary to have the same absolute prohibition on communication between special advocates and the open representatives, and the second point is simply to point to what has been adopted in Canada after the Canadians examined the British system and the British experience, and they have adopted a system which permits discussion between open representatives and special advocates on open matters, and have deployed a regime whereby the ex parte procedure may be used if there is a desire to communicate from the special advocates to the open advocates on anything that may impinge on closed material.

Mr de la Mare: Can I just add that in the United States, where I suppose the security concerns are every bit as great as in the United Kingdom, the system they have used, even in Guantánamo Bay, has been one in which open lawyers see all of the material and yet remain free to communicate with their clients. Training only has a rational connection to this issue if the training in question is training to ensure that lawyers who see both open and closed material do not inadvertently disclose matters of sensitivity in the courts of such exchanges with their clients. Otherwise, as Angus says, it is, with respect, irrelevant to the issues. The problem is one of fundamental bar.

Q51 Baroness Falkner of Margravine: Would it be fair of me to assume from what you have just said that your inability to communicate with the controlee affects your ability to represent their interests?

Mr de la Mare: Yes.

Mr McCullough: Yes.

Q52 Baroness Falkner of Margravine: How far does the decision in the House of Lords in AF affect any of these systematic limitations on your ability to ensure a substantial measure of procedural justice to the controlee?

Mr de la Mare: It does not address these matters at all, save that it identifies that as the overall touchstone of fairness, so that if, for instance, in any particular case you can articulate a need to communicate with the controlee and to point out that, absent such communication, there will be a loss of fairness tested against that standard, then that logically demands a modification of the existing rules to ensure that that type of fairness is provided. The problems on the barrier to communication operate on two levels, first of all the practical level. It is often a great practical inconvenience or impediment to have to put what can be mundane or routine correspondence through a very cumbersome approval process. It often results in an extremely frustrating scenario, where letters that you have drafted are substantially out of date and no longer fit for purpose by the time they come to be approved. You may be seeking to have some form of interaction in the procedural timetabling of the case and matters of that kind. By the time your letter is cleared by the security services or by the court, that letter is behind the times. That is the first impediment and the cumulative effect of that can be such as to impact on the fairness of the hearing. The second impediment is one of your substantive ability to represent clients to the best of your ability by adopting the wisest tactical course, by seeking, insofar as you can, to impart advice or strategy. There will be circumstances in which the closed material dictates that an ordinary competent lawyer should follow this strategy as opposed to that strategy, and yet you cannot communicate that in any way to the open lawyers unless you disclose those very issues of strategy, or indeed legal privilege, to the very party that you are meant to be acting against, and one has to question whether that is compatible with their rights to effective representation and the protection of legal privilege.

Q53 Chairman: Can I put to you a question I put to the solicitors earlier on, just going back to the Carlile report and findings? I take it from what you were saying that you were surprised by his conclusions on your representations to him, and, putting it neutrally, as Baroness Falkner would like me to, do you think it has got to the stage where the independent reviewer has lost a degree of independence, bearing in mind how long that office has been held? You can be diplomatic if you like.

Mr McCullough: I will resist the temptation to answer that question, if I respectfully may, because I do not think as a special advocate I bring any particular insight or authority in answering that question and I would defer to open representatives and their views and answers in relation to that.

Q54 Earl of Onslow: Before I go on to the question which I am going to ask about Lord Hoffmann, on closed evidence, in your experience, could a lot more of it be released? Are they being over-prescriptive on what can be disclosed and what cannot be disclosed?

Mr McCullough: I think that is a difficult question to answer. We argued more should be, and the courts form their view and perhaps inevitably the courts – “deference” may be the wrong word — accord great weight to views on matters of national security expressed by the agencies who are particularly charged with protecting national security. So there are debates which go on as to whether more should be disclosed and the special advocates usually come out the wrong side of those debates.

Mr de la Mare: My answer to that question would be yes, there is more which could be disclosed, but I would not want to exaggerate the extent to which that is the case. There are often clear categories of information which are necessarily sensitive as to which no special advocate worth their salt wastes time arguing about. At the edges, in my judgment — and it is only an opinion — there is a substantial amount of information which could be disclosed. I do not expect for one minute anyone from the intelligence services would agree with that, but that is my opinion. One has to again ask the question, what is the risk you are dealing with, and to a certain extent what is the opponent you are dealing with. Sometimes my impression is that the abilities, intelligence-gathering capabilities, interests, sophistication of the opponent you are putatively keeping the information from is exaggerated; one is modelling for a Cold War scenario rather than the type of intelligence problem we currently face. But that is simply an opinion and I am sure others would vehemently disagree.

Ms Mountfield: In one of the cases the security service found its way into the judgment, a witness of the security service agreed that they are institutionally cautious and they take an extraordinarily precautionary approach to what needs to be kept private in the interests of national security. It was quite interesting that in AF Baroness Hay, I thought, sounded surprised that a class approach was taken — that “class” of document or that “class” of information can then be disclosed because — which is an approach which courts no longer take or no longer take as regularly in other forms of proceeding. I would agree that my opinion is sometimes more could be disclosed but that really is a judgment call in particular cases.

Q55 Fiona Mactaggart: On this issue of disclosure, I understand you operate as lawyers and I am a politician, but one of the things I am wondering is, do you ever have any conversations with people who make decisions that classes of documents, et cetera, should not be disclosed about the implications of that kind of thing? Is there any space in which special advocates and spies can sit down and talk about what can and cannot be disclosed? If not, why not?

Mr McCullough: It happens at one remove, in that the standard procedure in relation to these discussions and debates is for the closed evidence firstly to be produced by the Government, the special advocates to produce a schedule of submissions as to that which we say should be made open, either because it can be made open without any risk to the public interest or because AF now requires it to be made open. The Secretary of State responds by way of a schedule, point by point, document by document, whatever, and then a meeting takes place between the special advocates and counsel instructed on behalf of the Government. Those counsel then tend to go away and take instructions from those concerned and come back and tell us what we can and cannot have voluntarily and what we will have to argue before a judge, because we are not going to get it from them voluntarily. That is the way the procedure works. There is no direct discussion between the special advocates and members of the relevant agencies concerned.

Ms Mountfield: And special advocates have tried to argue whether the class approach is appropriate in individual cases and have not got very far.

Mr de la Mare: Your question is a very good one but the relevant party with whom to have discussions is not politicians.

Q56 Fiona Mactaggart: I know.

Mr de la Mare: Politicians have but extremely occasional involvement in decisions of this kind. The relevant interlocutors are the intelligence services, and the intelligence services in my experience have a view, and it is not a view from which they are easily moved and not necessarily one they are interested in debating.

Q57 Fiona Mactaggart: It is not a view which in many other contexts is in any way justiciable, which is accountable to the courts usually. One of our problems is that one can argue it is not as accountable as arguably it should be, but yours is one of the very few spaces in which there is that bit of accountability. I just wonder whether there is any possibility of creating a space which is not just about lawyer talk — and I am not “dissing” your profession in any way — but which brings the insight of the law and judges’ statements and the insights of people whose job is to go round spying and keeping us safe together in a space which is not, “Me being one side and you being the other side in a sort of court room war”, but actually have a conversation about why something is dangerous, why something is just and unjust. It really strikes me that that conversation would potentially be a helpful conversation to serve the ends of justice.

Mr de la Mare: There are two things I would say in relation to that. Firstly, the type of process you are describing is to a certain extent a compromise base process, and it is not necessarily one that fits the type of discussion which is on-going, not least because ultimately the special advocates in this particular area have reasonably little leverage. The way the case law is structured is such that the courts recognise these issues are on the border line of justiciability and they recognise the very special acquired expertise of the intelligence services. It is only in a very exceptional case they will gainsay an intelligence assessment made by the intelligence services. First of all, there is little leverage. The second issue is that at the end of the day what underpins all of this is a risk assessment, and different and rational people can take a very different approach to risk assessment. As Helen points out, if you start off from an institutionally cautious basis — and no one could rightly criticise the Secretary of State or the intelligence services from starting off from that perspective — if you start off with that caution in-built, you are always looking to maximise the extent to which you give effect to that in terms of restricting what is disclosed. So at the end of the day, if you are adopting that mentality, there is not much room for a debate about compromise in any event.

Q58 Chairman: Do you always act on one side? Have you ever acted on the security services side of the fence?

Mr de la Mare: I have acted for the security services but not in a control order case. But I have acted in another national security case.

Mr McCullough: Likewise. I have often acted for the Home Office in other contexts and have also acted for the intelligence agencies in other contexts.

Ms Mountfield: Once, but not in this context. I understand in these cases there is now a protocol to keep those who have been vetted as special advocates and those who have been vetted for the Home Office apart, so they do not nick each other’s lawyers.

Q59 Earl of Onslow: One of the things which seems to be coming out of this particular section of discussion is that there is no public light upon where the border should be set. It seems to be a closed conversation between everyone. Would it not somehow be better if there could be a level of public light on this which would, once it was found out what the level should be, have a greater legitimacy than it appears to have? I hope I am making myself clear.

Ms Mountfield: When evidence is served in open and closed form on special advocates, it comes with an open schedule of reasons why some of the evidence is closed, and a lot of that is in very general terms — “national security requires our intelligence-gathering techniques to be kept closed”, sometimes “people’s lives may be in danger”; it is in very generic terms. Sometimes a closed schedule gives more detailed reasons in a particular case about why things are closed. It is difficult to see, given that we do not have many weapons to gainsay what is actually in the end a judgment, as Tom said, how much further than that it can go. In the end, we have discussions with the advocates for the Secretary of State and the security services and if we do not agree we go to the court, but the court will also have a certain degree of deference to what they say; it is their judgment as to what measure you are meant to use to criticise their judgment. So it becomes quite difficult to adjudicate upon.

Q60 Earl of Onslow: I am not under-estimating the problem. Lord Hoffmann and Lord Hope have basically observed that as a result of the House of Lords decision the system of control orders is possibly unsustainable. Would you go along with that? Lord Hoffmann’s actual quote is, that the Lords decision “may well destroy the system of control orders which is a significant part of this country’s defence against terrorism”. Lord Hope also observed that the result of the decision may be that “the system is unsustainable”. Comment please.

Mr McCullough: I think that remains to be seen. Certainly, as we have already indicated, a number of control orders have been recognised by the Government to be unsustainable and a number have been quashed by the courts since the judgment in AF, and a further number are pending before the courts. So the overall sustainability of the system remains to be seen, as to whether there is a significant number of control orders that can survive the decision in AF.

Mr de la Mare: Going back to my spectrum, it is going to be the mosaic cases which become harder to sustain. Proxy-criminal cases will be easier to sustain. The Secretary of State is to a degree caught between a bit of a Scylla and Charybdis because we have talked about the Scylla, which is the European Court of Human Rights, but there is also the Charybdis, which is the European Court of Justice and the Corriet case law which is likely to be increasingly relevant in relation to the so-called control order lights. Internal exile actually concerns one of the protocols of the European Convention on Human Rights, which is not incorporated in the Human Rights Act but is recognised to be a fundamental right in EC law, even where no free movement within Community Member States is involved — there is a case called Rutili. I suspect we are going to see considerably more argument about that as the control orders get watered down.

Chairman: That sounds quite complicated, we are going to have to work on that one I think.

Q61 Earl of Onslow: If it does become unsustainable, what — and I am probably going to get a rocket from the Chairman for asking this question — can you put in its place or how would you do it?

Mr McCullough: For my part, that is a question that special advocates do not really have a particular expert view to offer this Committee, and I would defer to reviews of open representatives generally.

Chairman: That is a fair point.

Earl of Onslow: Gareth Peirce did have a view.

Q62 Chairman: That is their position. The Home Office, in their memo to the Home Affairs Committee on control orders, says, “various House of Lords judgments have confirmed the way in which the 2005 Act operates in a manner fully compliant with the ECHR”. Do you think that fully characterises MB and AF?

Mr de la Mare: No.

Q63 Chairman: I thought you would say that!

Mr McCullough: It is a striking comment and it certainly struck all three of us, because it does not seem to us to reflect our reading of the House of Lords decisions. They do not on our reading appear to be a confirmation of the way in which the 2005 Act operates in a manner which is fully compliant with the ECHR.

Dr Harris: The Home Office would say that it can operate if it is read compliantly with the rule. That is their get-out.

Chairman: That is a Humpty-Dumpty argument, is it not?

Mr de la Mare: I think a fairer way to put it is that the guidance contained in two House of Lords judgments and in a judgment of the European Court of Human Rights has indicated how it may be possible to operate control orders consistently with human rights legislation.

Q64 Chairman: I think that leads me to my next question, and I can probably guess the answer to this one as well. If we are keeping control orders, do we need to change the legislative framework to reflect more accurately the way the courts require the system to be operated?

Ms Mountfield: That would be very helpful.

Mr McCullough: I think it would. Again, probably not a particular special advocates specific question, but there does seem to have been a gulf that has developed between what Parliament has set out should happen and the way in which the courts have said things are required to happen in order for the system to operate compatibly with ECHR requirements. When such a gulf has developed, it may well be sensible for the law to be brought into line, the legislation and rules to be brought into line.

Q65 Chairman: Rather peculiarly, it was not a certificate of incompatibility case, I think.

Mr de la Mare: I think it is also fair to say that Parliament did not necessarily have it fully explained to it that the system as previously operated was a substantial departure from the way that public interest immunity works at common law. At common law there is a three-stage balancing test for public interest immunity, the final stage of which is to balance the unfairness against the damage to public interest. If there is an intolerable unfairness, then the material must be disclosed.

Q66 Chairman: Or the case dropped?

Mr de la Mare: That stage in the common law public interest immunity stage was effectively abolished by the legislation and the gradual effect of the decisions in MB and AF was to replace it so that the legislative test effectively again looked like the common law test. I think before Parliament is asked to do something of that kind again, the reasons for any abolition of the common law test replicated in Strasbourg should be closely articulated. Now the House of Lords has said that that test should be re-introduced and it should appear consistently.

Chairman: I suppose the inference is that if we re-legislate to try and put things right and get it wrong, it would be an incompatibility a second time around; speculative, I suppose.

Q67 Earl of Onslow: I see that Lord Carlile says that he has considered the effects of the Court decisions on disclosure, and in his view it should be possible in most cases to provide sufficient disclosure to comply with legal requirements without damaging the public interest. Do you agree?

Mr McCullough: I think that is probably a case-specific question but I rather doubt it. For reasons Tom has explained, in most of the existing control order cases that were in existence before the House of Lords decision in AF, a conclusion had been reached that the closed material could not be disclosed without there being harm to the public interest. As a result of AF, that material has to be revisited. Insofar as allegations which are currently closed are required to be made open in order to comply with Article 6 and the principles expounded in AF, then a decision has to be made by the Government as to whether to disclose on the one hand, and thereby incur harm as the Government assesses it and courts have accepted to the public interest, set against the harm that the Government assesses there would be through not having a control order at all. So there is a judgment for the Government to make in each case where they have been told that disclosure is required in order to comply with AF. I think those are case-specific and, even within cases, elements-of-evidence-specific judgments which fall to be made, and it is probably not possible to generalise across the system. At least I would be reluctant to do so.

Q68 Chairman: Talking about generalisations, I just want to move on to other types of secret evidence cases briefly and implications for AF for them. You have identified with the assistance of the Home Office some 21 different types of cases which involve secret evidence and special advocates to some degree or another, do you think AF has implications for use of secret evidence and your role in other types of cases?

Mr McCullough: Yes.

Ms Mountfield: Yes. The big category of case where AF has been said so far is in passing not to apply is SIAC proceedings because they are deportation proceedings —

Q69 Chairman: That was the next question.

Ms Mountfield: — and AF does not apply, but there is a case which is going to the Court of Appeal in June called Z and Others, where that is being challenged at least in relation to the assessments about national security. It is a common law fairness argument and the argument that has been advanced is that Article 6 may not require this but there are lots of dicta that fairness is fairness, or a minimum of fairness is the same in all types of proceedings, whether or not that is backed by European law principles or common law principles.

Q70 Chairman: We had better not go into that too much because of the sub judice rule which binds us.

Ms Mountfield: I am not telling you what the argument is.

Mr McCullough: There is a range of other contexts in which it remains to be determined, at least remains to be determined by the Court of Appeal, as to the applicability of AF. Those include the so-called “light touch” control orders, which at first instance it has been held AF principles do apply, but that is subject to appeal due to be heard by the Court of Appeal in the next few months, I think. Similarly in the context of employment tribunal proceedings, that is due to be considered by the Court of Appeal. So the scope of the applicability of AF principles remains to be determined by the courts.

Ms Mountfield: And curiously SIAC bail — whether or not you can get bail in SIAC — does engage AF principles; whether or not you can be actually sent back is sub judice.

Mr de la Mare: Particularly contentious is likely to be the classic civil proceedings, and the most obvious instance of that is the civil proceedings being brought consequent upon extraordinary rendition and such acts. There will be real questions raised there about to what extent AF applies to a classic tort claim.

Q71 Chairman: So, damages cases?

Mr de la Mare: Damages cases, yes.

Q72 Chairman: Interesting. I think we have finished our questions, is there anything you think we have missed or would like to add?

Mr de la Mare: One point, which is law reporting. In the Binyam Mohamed case, quite extraordinarily the ICLR, that is the charity responsible for law reporting, intervened to point out how much their job was being impeded by closed hearings and closed arguments, including closed arguments on law, and they invited some attention to be given to how these cases could be effectively and procedurally efficiently reported. That is a subject which I would suggest is allied to this whole topic so that the public can inform themselves as to what is happening from a legal perspective.

Q73 Chairman: That goes beyond control orders, that is generally in these cases?

Mr de la Mare: That is also linked to the problem of closed judgments, and there is an increasing corpus of closed judgments with which special advocates have to familiarise themselves. So there are a number of practical issues connected with that, not least whether or not an advocate in one case can get access to a closed judgment in another case because of the specification of not only the law but of the facts.

Q74 Chairman: How do the courts get access to them then?

Mr de la Mare: A very good question.

Q75 Chairman: You have a closed judgment in one case, if you are a special advocate in that case and you have a subsequent case, you obviously have access to it —

Mr de la Mare: You say “obviously”, but if it is in relation to facts that are themselves sensitive and summarised and you do not have a need to know those facts, the security services may object to you reading that judgment.

Q76 Chairman: So you have a judge who has to decide one of these cases —

Mr de la Mare: The judge can read it.

Q77 Chairman: How does the judge know it exists?

Mr de la Mare: That is the problem.

Mr McCullough: Before you even get to the issue of access you have to be aware that a judgment which may be relevant exists.

Q78 Chairman: So what happens? Is that word of mouth amongst the special advocate community, as you call it?

Mr de la Mare: Yes.

Mr McCullough: Which is not an ideal or satisfactory way for this body of closed case law to have been made available to those who need to operate it.

Q79 Chairman: If we are looking at the development of the common law in this area or statutory interpretation, you could have mutually contradictory judgments —

Mr de la Mare: To give you a practical example, in the AF case, the special advocates got together and summarised the effect of all the closed judgments dealing with disclosure and distilled the disclosure principles which had been applied in the various closed disclosure application hearings, and persuaded the Secretary of State to make that document open. It was then incorporated in the judgments in the House of Lords. That was the first time the precedent was made known what the criteria were by reference to which —

Q80 Chairman: So you wrote your own precedent?

Mr McCullough: We summarised the precedents.

Mr de la Mare: We wrote the head note, I think is more accurate.

Q81 Dr Harris: If you are doing a discrete case, there are certain legal arguments where you are arguing about disclosure but you are not able to make them efficiently, for all you know, because you may not be able to draw on previous judgments and previous arguments, because those include facts that you are not entitled to know, because they are to do with a different case unrelated to the one you are working on?

Mr McCullough: Yes.

Mr de la Mare: Yes.

Ms Mountfield: Yes, and it is problematic.

Q82 Lord Dubs: Suppose you as an individual had been involved with both cases?

Mr de la Mare: Then you would know and you would be —

Ms Mountfield: But that is ad hoc.

Q83 Lord Dubs: That would be pure luck?

Mr de la Mare: Yes.

Q84 Dr Harris: Have you raised this as an issue? What has been said when this has been raised?

Mr de la Mare: “Under consideration”.

Q85 Lord Dubs: If you have been involved in another case, say Case A, can you in Case B, if you happen to be individually on both of them, quote Case A?

Mr de la Mare: Not without prior approval.

Q86 Chairman: So they can restrict you relying on previous precedent?

Mr de la Mare: That is possible, yes.

Q87 Chairman: Has it ever happened to you?

Mr de la Mare: It has actually, yes.

Q88 Dr Harris: How do they know you are using an argument from a closed judgment if you do not cite the closed judgment and just come up with the argument?

Mr de la Mare: I cannot really go into specifics.

Chairman: You cannot argue the basis of the case if you do not cite the case.

Dr Harris: No, but you can make the argument.

Q89 Baroness Falkner of Margravine: You get together as a community, so you speak to each other. Do judges have that sort of relationship where they also find out by speaking to each other?

Mr de la Mare: The Special Advocates Support Office convenes regular meetings in which we discuss so far as we can these points of principle which emerge, so we inform each other as to what is happening in relevant cases. That may work reasonably well amongst the special advocates at the moment, but as the pool grows bigger that becomes more problematic. There is a wider problem, which is that some of these principles are principles of law and they should be known by the open lawyers so that the open lawyers can fix appropriate strategies or take informed decisions as to what to do to best represent their clients as against knowing how the special advocates will act, may act or be inhibited from acting in consequence.

Q90 Chairman: It also affects academic research on all this and the work we do.

Mr de la Mare: Yes.

Earl of Onslow: How much of the stuff for the courts is a matter of public record or is it all closed?

Q91 Chairman: That is the whole point.

Mr de la Mare: That is precisely the objection of the law reporters, which is that it all should be a matter of record and decisions on points of principle should so far as possible be contained in open. The courts, to be fair to them, strive as far as they can to put points of principle into the open judgments.

Q92 Earl of Onslow: The question I am asking, and again I am seeking knowledge, can I as a member of the public just walk into the court and hear you arguing your case?

Mr de la Mare: The closed case, no, the public are excluded.

Q93 Earl of Onslow: Are all of these cases closed?

Mr de la Mare: The public are fully excluded from the portion that deals with the closed evidence and arguments in relation to the closed evidence, closed witnesses.

Mr McCullough: In every case there will be an open stage and then a closed stage, and the public are excluded from the closed stage and that is when the special advocates ply their trade behind closed doors.

Q94 Chairman: One specific question which I must put to you, has any minister met with or asked to meet with the special advocates to discuss your concerns about the process?

Ms Mountfield: No, not as far as I know.

Mr McCullough: Not in recent times, I think.

Mr de la Mare: I remember a meeting with Lord Goldsmith, but that was before the House of Lords decision in MB. It was some time ago.

Mr McCullough: I have an idea quite a number of years ago a Home Office minister did meet with a small number.

Chairman: I remember Tony McNulty promising us he would do so and I was reminded of the promise.

Q95 Dr Harris: You would remember him if you had met him!

Mr McCullough: It was not me but I think a meeting did take place, and it sounds as if it was on this Committee’s prompting. I think that did occur some years ago.

Ms Mountfield: Another special advocate and I corresponded when the new rules were being drafted for SVAP, the Security Vetting Appeal Panel. We had real concerns about the proposed role for special advocates in that context and we wrote and expressed those concerns and copied it to the Attorney General who did then intervene and she supported us.

Q96 Chairman: Did you have an extra point you wanted to raise?

Ms Mountfield: A lot of what we have talked about is rule changes and there is one, I think, endemic problem in closed proceedings which deserves to be made open, which is about the very late disclosure of documents by the Secretary of State to special advocates. I have taken soundings from other special advocates about whether that is a fair word to use and it is a fair word. In almost every case a very substantial volume of disclosure, sometimes very important disclosure, arrives on the Friday before a Monday hearing or a couple of days before. I think it is fair also to say that the special advocates share a serious concern that that prevents them from performing the function they are intended to perform.

Q97 Chairman: This is closed material?

Ms Mountfield: The system is that the closed material is served, we ask for some of it to be made open, we meet with the advocate for the Secretary of State to try to agree that, if we cannot agree it we go to court and get a decision about what ought to be disclosed. What often happens is that very, very shortly before the substantive hearing another wadge of new material arrives. Sometimes that is additional material which comes as a result of late review but not always. We are often aware of documents which we know were available many weeks or months before. It is very disruptive.

Q98 Chairman: When you say it arrives, it arrives at your chambers?

Ms Mountfield: Yes. You get a note that it has been delivered to your safe. It may be that much [indicates size], it may be three lever arch files, you do not know how much it is going to be, you have no guide to what is in it.

Q99 Chairman: Are there rules about where you can take it? Can you take it home to work on it over the weekend?

Ms Mountfield: No, you cannot take it home. If it arrives on a Friday before a Monday hearing, that is extremely problematic. There is a real lack of discipline about that and there is a lack of sanction. You stand up and say, “This was terribly unfair, we have done our best but we are sure we have done it in too hurried a way, what can the court do?” In private proceedings they might say, “We will not allow that late evidence to be used”, but they cannot do that here because it is evidence about national security. You cannot say, “We will decide a national security case based on only half the evidence”. There is no cost sanction, it is money moving from one part of the Treasury Solicitors to another. If you really need an adjournment, I guess you would seek it, but the controlee does not really want this to go on for still longer than it already has, given the delays which are inherent in the system. What we do, and I do not know whether Angus has done it, is to register our concern and we try to make that open if we can and the courts share our concern, and on we go. It is not something about the rules but it is a very, very serious problem about the operation of the special advocates system. I think sometimes when the higher courts express views on the role special advocates can perform, that is based on lucky ignorance of quite how difficult it is in practice to do the job which the rules say we do. That is a difficult position for a lawyer to be in if you care about the rule of law and this is a system for filling a justice gap.

Mr de la Mare: Helen’s point is extremely well made. Every single special advocate has experienced this problem. There are two inevitable consequences about making disclosure. The first is that this material is incredible dense, it is incredibly difficult to parse, and parse it you have to do, word by word often, unpicking the various synonyms or codes used in this documentation. It takes a long time to read and you read it without the benefit of someone to help you with it, because you do not have a client, you do not have an intelligence expert to tell you what this document means or does not mean or what its implications are for other documents. You do not read it in isolation, you have to read it with the documents it has to be read with or refers back to. To do that job properly takes time and you cannot do it if you are dumped with the material the day before court. The second point is that late disclosure inevitably means that the thing which is lost is the disclosure process, and it is the disclosure process which is one of the two most important jobs that a special advocate does, namely ensuring that, insofar as it can be, the material in question is put in open, or a gist is provided for it or some form of follow-up occurs. That process always goes out the window when you get late disclosure.

Q100 Chairman: That begs the questions, is this a conspiracy cock-up or a cocked-up conspiracy? Is it a deliberate tactic?

Mr McCullough: I echo the experiences of both Tom and Helen. I would not suggest that it is a conspiracy. I think the Government forces, as it were, are overstretched, but they realise, or at least have at the back of their mind, that there is no effective sanction that the court can impose for these serial and routine breaches.

Q101 Chairman: So you would not say it is a deliberate tactic?

Mr McCullough: I would not say it is a deliberate tactic, but I think the special advocates’ ability to discharge their role effectively falls quite a long way down the order of priorities that the Secretary of State and his team have in the way they conduct the litigation. This leads to these endemic problems. As Helen has said, my recent practice at least — so that open advocates are aware of the position at least — is to produce a note setting out the chronology of what has occurred and getting the court’s permission with the Secretary of State’s approval for that note to be disclosed to the open advocates. It does not remedy the position but at least the open representatives are aware of what is going on. It may be possible, if the Committee were interested, for me to give just one example by way of such a note which has been approved for open disclosure as illustrative of this widespread problem.

Q102 Chairman: That would be helpful.

Ms Mountfield: On cock-up or conspiracy, frankly it does not matter.

Q103 Chairman: It matters to the extent that if it is a deliberate strategy then that is a rather more serious thing than simply a lack of resources or lack of competence.

Ms Mountfield: But the effect —

Q104 Chairman: The effect on the individual is the same but the remedy is very different; the political remedy from our point of view.

Ms Mountfield: The problem is different agendas. The security service is taking an institutionally cautious approach to do whatever it takes to protect national security as they perceive it in a particular case. Overstretched government departments are going through their documents to do the things they have said they will do, but it does not much matter if it is late, because at the end of the day there is not a sanction. It is a real concern if you think the rule of law matters. The other real problem is that it is all closed and one wonders whether it would happen quite so frequently if this was a process which was open to public scrutiny.

Chairman: I think we are going to have to draw a line there. Thank you very much, it has been a fascinating session.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

For other articles dealing with Belmarsh, control orders, deportation bail, deportations and extraditions, see Deals with dictators undermined by British request for return of five Guantánamo detainees (August 2007), Britain’s Guantánamo: the troubling tale of Tunisian Belmarsh detainee Hedi Boudhiba, extradited, cleared and abandoned in Spain (August 2007), Guantánamo as house arrest: Britain’s law lords capitulate on control orders (November 2007), The Guantánamo Britons and Spain’s dubious extradition request (December 2007), Britain’s Guantánamo: control orders renewed, as one suspect is freed (February 2008), Spanish drop “inhuman” extradition request for Guantánamo Britons (March 2008), UK government deports 60 Iraqi Kurds; no one notices (March 2008), Repatriation as Russian Roulette: Will the Two Algerians Freed from Guantánamo Be Treated Fairly? (July 2008), Abu Qatada: Law Lords and Government Endorse Torture (February 2009), Ex-Guantánamo prisoner refused entry into UK, held in deportation centre (February 2009), Home Secretary ignores Court decision, kidnaps bailed men and imprisons them in Belmarsh (February 2009), Britain’s insane secret terror evidence (March 2009), Torture taints all our lives (published in the Guardian’s Comment is free), Britain’s Guantánamo: Calling For An End To Secret Evidence, Five Stories From Britain’s Guantánamo: (1) Detainee Y, Five Stories From Britain’s Guantánamo: (2) Detainee BB, Five Stories From Britain’s Guantánamo: (3) Detainee U, Five Stories From Britain’s Guantánamo: (4) Hussain Al-Samamara, Five Stories From Britain’s Guantánamo: (5) Detainee Z, Britain’s Guantánamo: Fact or Fiction? and URGENT APPEAL on British terror laws: Get your MP to support Diane Abbott’s Early Day Motion on the use of secret evidence (all April 2009), and Taking liberties with our justice system and Death in Libya, betrayal in the West (both for the Guardian), Law Lords Condemn UK’s Use of Secret Evidence And Control Orders (June 2009), Miliband Shows Leadership, Reveals Nothing About Torture To Parliamentary Committee (June 2009), Britain’s Torture Troubles: What Tony Blair Knew (June 2009), Seven years of madness: the harrowing tale of Mahmoud Abu Rideh and Britain’s anti-terror laws, Would you be able to cope?: Letters by the children of control order detainee Mahmoud Abu Rideh, Control order detainee Mahmoud Abu Rideh to be allowed to leave the UK (all June 2009), Testing control orders and Dismantle the secret state (for the Guardian), UK government issues travel document to control order detainee Mahmoud Abu Rideh after horrific suicide attempt (July 2009), Secret evidence in the case of the North West 10 “terror suspects” (August 2009), Letting go of control orders (for the Guardian, September 2009), Another Blow To Britain’s Crumbling Control Order Regime (September 2009), UK Judge Approves Use of Secret Evidence in Guantánamo Case (November 2009), Calling Time On The Use Of Secret Evidence In The UK (December 2009), Compensation for control orders is a distraction (for the Guardian, January 2010), Control Orders Take Another Blow: Libyan Cartoonist Freed (Detainee DD) (January 2010).

2 Responses

  1. kabuli says...

    It not always easy to understand legal arguments when one isn’t a lawyer. I gather from these transscripts that :

    There is the Secret Service -which has practically received Carte Blanche from the government and is not really accountable to anyone- which makes sweeping accusations (‘We Know you Support Terrorists’) without having to provide any evidence for this (so in fact there is no evidence that there is any evidence to start with); there is the ‘Special Advocate’ who -after endless battles- is allowed to see a tiny part of whatever evidence is available, but is not allowed any communication with the accused’ defense lawyer without it being checked by the prosecuting Secret Services, so their modest ‘inside knowledge’ de facto is of scant use to the lawyer; there’s the defense lawyer who is not even informed as to the exact nature of the accusation -let alone having access to significant evidence to support it-, yet somehow miraculously must be able to defend his client; and there’s the defendant, who knows nothing at all, except that for some obscure reason he and his family suddenly have ended up in some Kafkaesque nightmare.

    Finally there’s the judge. If he -in this thick fog that lacks anything that would even remotely resemble transparency-, eventually manages to make any sense of the fragmented ‘evidence’ and dares to rule that the accusation is not acceptable according to government rules … the government modifies the rules.

    Like a labyrinth in which you finally make it to the exit, only to find that it just has been moved, so you must turn around and start searching for it all over again. Is this really Great Britain, is this Europe a.d. 2010 ? Have we sunk that low ?

  2. Andy Worthington says...

    Sadly, yes, Kabuli, this is how far we have sunk. And as you will have seen from the recent witch-hunt of Moazzam Begg — I find the use of “witch-hunt” particularly apposite — there are plenty of people who are all too willing to defend this kind of fundamental abrogation from the laws that have protected us all from unfettered executive power for many centuries. It was particularly chilling for me to read Thomas de la Mare’s statement that, at least in Guantanamo, prisoners are able to communicate openly with their lawyers.
    Thanks for the comments, as ever.

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Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo and We Stand With Shaker. Also, photo-journalist (The State of London), and singer and songwriter (The Four Fathers).
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