The right to a fair trial is undoubtedly one of the most sacrosanct rights in most modern legal systems, and is manifested in one of the most important articles in the European Convention on Human Rights. Certainly, in the United Kingdom, courts have historically been forthright in protecting this right. An axiomatic element of a fair trial is that there exists equality of arms between parties; as such, UK courts have taken upon themselves a duty to “ensure to the greatest possible extent that there is compliance with the adversarial principle” in all civil and especially criminal cases. Likewise, they have held that for a fair trial system to be in place, all parties must be able to hear, understand and refute the argument against them, in “conditions that do not place him at a substantial disadvantage vis-à-vis his opponent”. The open and fair trial has been depicted as the antithesis of a Kafka-esque state.
This has not, however, insulated the equal and open trial mechanism from certain interferences. One of the most controversial incursions in this respect comes from the ‘closed material procedure’. This involves a special trial where, in the interests of national security, certain necessary information is kept secret from a party, and is instead provided to court-appointed “special advocate” who represents the interests of the restricted party (but is not directly accountable to them). As Lord Dyson explained, the affected party cannot directly access documents, hear or respond to the opposing side’s argument, correspond directly with the judge or communicate freely and openly with their appointed advocate. Unsurprisingly, the procedure has been met with intense criticism: see here, here and here.
UK courts have ruled on these closed material procedures a number of times. In 2011 the Supreme Court handed down a landmark judgment concerning the procedure in Al-Rawi. The court, by a majority, held that it did not have an inherent power to order such a procedure under the common law – the measure being such a drastic interference with fair trial rights that it could only be authorised by Parliament through a specific statutory provision. Of course, Parliament, both at the time and since, has done just that, allowing closed material procedures in a number of circumstances. But Al-Rawi stipulated that whatever Parliament chose to do, this was out of bounds for the court. In Bank Mellat, however, the court found an exception to the Al-Rawi rule. It held that when an appeal is lodged against a ruling which relied decisively on information disclosed in a statutory closed material procedure, the appellate court can itself order a closed material procedure, even if this falls outside of the ambit of the statute, in order to properly assess the merits of that appeal. The court partially relied on statutory provisions in the Constitutional Reform Act 2005 to justify its outcome.
The Supreme Court yesterday (24 January 2018) handed down the third instalment in this trilogy in the case of Haralambous. The relevant issue in this case concerned the power of the court to authorise closed material proceedings in the context of judicial review. Specifically, the question arose as to whether, in circumstances where a decision is (lawfully) made in secret so as to avoid disclosure of national security information, and that decision is judicially reviewed, the court is able to conduct a closed material procedure (along the lines of Bank Mellat) or whether it was prohibited from doing so due to the incursion into fundamental fair trial rights (along the lines of Al-Rawi).
The court unanimously held that it did have the power to issue such a procedure. It reasoned that justice could not be done in a judicial review case without an appellate court being able to fully review the necessary facts. The closed material procedure, though imperfect, was regarded as the only way for any sort of review to take place. It, in effect, carved out another exception to Al-Rawi. Like in Bank Mellat, some shaky statutory justifications were utilised to bolster their conclusion.
The combined effect of the Supreme Court’s decisions in Al-Rawi, Bank Mellat and Haralambous is that courts have no inherent power to order a closed material procedure but can order one where a party is (a) appealing or (b) judicially reviewing a decision made under a closed procedure. These concessions from Al-Rawi might be seen as an unavoidable consequence of Parliament authorising some forms of closed material procedures in a judicial system involving appellate review. They should be viewed, however, alongside the recent legislative initiatives which have, albeit only under certain circumstances, extended the applicability of the closed material procedure to all civil cases. This means that a court can now in theory order a closed material procedure in any civil case, and in any review or appeal stemming from such a case. Viewed in such a way, Haralambous might be seen as part of a wider trend of steadily watering down of the once-inviolable right to a fair and open trial.