Closed Trials and Secret Allegations
| Author | Daniel Kelman |
| Published date | 01 August 2016 |
| Date | 01 August 2016 |
| DOI | 10.1177/0022018316657939 |
| Subject Matter | Articles |
Article
Closed Trials and Secret
Allegations: An Analysis
of the ‘Gisting’ Requirement
Daniel Kelman
University College London, UK
Abstract
The tension between an individual’s right to a fair trial and a state’s prerogative to withhold
information where it is in the national interest to do so is an issue which is especially relevant in
preventative detention cases. In a string of cases since 2009, lower courts have interpreted the
‘gisting’ requirement imposed by the Grand Chamber in AvUnited Kingdom in response to this
problem. This paper will consider the jurisprudence of the lower courts and will argue that the
House of Lords’judgment in AF No. 3 imposed requirements not only inrelation to the amount of
information that must be disclosed, but alsoin relation to what thatinformation must consistof. It
will note thattwo irreconcilable interpretationsof A have developed, and argue that one of those
approaches is incompatible with AF. Finally, it will discuss the interaction between these decisions
and the statutory framework of the JSA, especially ss 6(5) and 7(2), and will consider the conse-
quencesof the judicialuncertainty inthis area in relationto the return of TPIMsfollowing the CTSA.
Keywords
A and Others vUnited Kingdom, closed material procedures, Counter-Terrorism and Security
Act 2015, terrorism prevention and investigation measures
A Background to CMPs and Special Advocates
The 1997 Special Immigration Appeals Commission Act established the Special Immigration Appeals
Commission (SIAC), which encompassed certain powers and restrictions that entitled a special advocate
(SA) procedure. This procedure involves the use of security-cleared lawyers who are ‘appointed to
represent those appearing before the Commission ...in cases where closed ...material is involved’.
1
Whereas Public Interest Immunity procedures (PII) exclude classified material altogether, Closed Mate-
rial Procedures (CMPs) allow courts to take into account sensitive material without disclosing
Corresponding author:
Daniel Kelman, University College London, Gower St, London WC1E 6BT, UK.
Email: danielkelman90@gmail.com
1. House of Commons Constitutional Affairs Committee, ‘The operation of the Special Immigration Appeals Commission (SIAC)
and the use of Special Advocates’, Seventh Report of the Session 2004-5, Volume I, Page 5.
The Journal of Criminal Law
2016, Vol. 80(4) 264–277
ªThe Author(s) 2016
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DOI: 10.1177/0022018316657939
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