A Comparison and Critique of Closed Court Hearings
| Author | Anthony Gray |
| DOI | 10.1350/ijep.2014.18.3.455 |
| Published date | 01 July 2014 |
| Date | 01 July 2014 |
A COMPARISON AND CRITIQUE OF CLOSED COURT HEARINGS
A comparison and
critique of closed court
hearings
By Anthony Gray*
Professor, University of Southern Queensland School of Law and
Justice
Abstract Another example of the recent trend of departure from traditional
criminal due process requirements in the ‘terrorism era’ is the increased use of
‘closed court’ hearings in relation to the introduction of evidence considered
particularly sensitive with respect to national security. Typically, the person
affected by the proceedings, and their chosen legal adviser, are excluded from
such a hearing. This has many effects on the conduct of the trial as typically
envisaged. For the purposes of this article, I will focus on two main effects: (a)
the person does not get access to the evidence being led against them, and (b)
their ability to cross-examine witnesses being used against them is removed.
These developments contradict long-established and fundamental character-
istics of proceedings in a criminal law trial in common law systems, such as the
open court principle and the adversarial nature of proceedings. They also
contradict the right to confront accusers, a right traceable to Roman times, and
a feature of the British system for more than four centuries. They call into
question the fairness of the proceeding. This article highlights the latest case
law developments in key jurisdictions around the world before critically
appraising trends evident in the recent jurisprudence.
Keywords Closed court; Criminal intelligence; Right to challenge;
Cross-examination
consequence of the 9/11 attacks, London Underground bombings, and
the Bali and the Mumbai bombs has been the heightened public
awareness of the threat of terrorism in society’s midst. A cynic would
observe that governments around the world have ‘used’ such tragedies to ramp
doi:10.1350/ijep.2014.18.3.455
230(2014) 18 E&P 230–259THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
A
*Email: Anthony.Gray@usq.edu.au.
up legislative incursions on fundamental human rights on the basis that they
are necessary to preserve national security, even when the measures are
regularly seen to be overblown, doing little or nothing to reduce the actual
threat of terrorism.1As this is in an area in which the average citizen (voter) may
be unable to assess accurately government statements about the extent of the
threat or the need for the legislative response, because citizens generally do not
haveaccesstothesecurityinformationandprobablyhavenotreadthelegis
-
lation implemented as a response, legislative overreach becomes a probable
consequence.2
Given this, it becomes even more critical that the courts maintain their watchdog
role, in seeking a balance between the needs of national security, as well as funda-
mental rights of due process and fairness. One of these is clearly the right of an
individual to know the nature of any allegation made against them, the right to
respond meaningfully to the allegation being made, and the right to test the
veracity of evidence being used against them. In a civil law context (asopposed to
criminal law), this would be considered a right to natural justice; in a criminal law
context it would be considered to be an aspect of a fair trial or due process. These
rights imply an open proceeding.
For the purposes of the article, I will characterise a ‘closed court hearing’ as one
whereby the person affected by the proceeding, and their chosen legal represen-
tative, do not get to see or hear the evidence being led against them, and as one
whereby, as a result of this, their ability to cross-examine and testsuch evidence is
removed or severely curtailed.3I will keep these two facets of my concept of ‘closed
court hearing’ separate, because slightly different issues are involved with each,
although practically, the issues are linked—the fact that the person affected by the
proceeding does not hear the case against them will usually (but not always) also
effectively preclude them from cross-examining a witness being used against
them.
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF231
A COMPARISON AND CRITIQUE OF CLOSED COURT HEARINGS
1J. Waldron, ‘Security and Liberty: The Image of Balance’ (2003) 11 Journal of Political Philosophy
191.
2L. Zedner, ‘Seeking Security by Eroding Rights: The Sidestepping of Due Process’ in B. Goold and L.
Lazarus (eds.), Security and Human Rights (Hart: Oxford, 2007) 257; A. Ashworth, ‘Security, Terrorism
and the Value of Human Rights’ in B. Goold and L. Lazarus (eds.), Security and Human Rights (Hart:
Oxford, 2007) 209; N. Lacey, ‘Principles, Politics and Criminal Justice’ in L. Zedner and A. Ashworth
(eds.), The Criminological Foundations of Penal Policy: Essays in Honour of Roger Hood (Oxford University
Press: Oxford, 2003) 89.
3There are other facets, but I choose these two to keep the discussion manageable.
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