In a World of Their Own: Security‐cleared Counsel, Best Practice, and Procedural Tradition
| DOI | http://doi.org/10.1111/jols.12186 |
| Date | 01 October 2019 |
| Published date | 01 October 2019 |
| Author | John D. Jackson |
JOURNAL OF LAW AND SOCIETY
VOLUME 46, ISSUE S1, OCTOBER 2019
ISSN: 0263-323X, pp. S115±S135
In a World of Their Own: Security-cleared Counsel, Best
Practice, and Procedural Tradition
John D. Jackson*
This article charts how security-cleared counsel have been constructed
as a mechanism for managing the tension between security and
fairness in secret trials and transferred across national boundaries as
an example of `best practice', before going on to evaluate recent cross-
cultural and transnational research on this `best practice'. Particular
attention is paid to the central role played by the European Court of
Human Rights (ECtHR) in promoting the role of `special advocates'
and a contrast is made between the methodologies deployed by the
Court and those used in recent research to identify and problematize
`best practice' within the closed world of security-cleared counsel. The
article then goes on to explore the relationship between `best practice'
and procedural tradition and argues that normative solutions
advancing `best practice' need t o pay careful attention to the
procedural contexts and cultures in which they are embedded.
INTRODUCTION
Over the last number of decades there has been a considerable literature
devoted to the increased focus on managing risk in Western democracies
which has coincided with the development of technologies which are able to
impose increased scrutiny on `risky' individuals. Within the criminal justice
system, attention has been drawn to a paradigm shift away from the `old
penology' with its focus on identification, prosecution, punishment, and
S115
*School of Law, Law and Social Science s Building, University of
Nottingham, University Park, Nottingham NG7 2RD, England
J.Jackson@nottingham.ac.uk
An earlier version of this article was presented as a paper at the Criminal Justice
Discussion Group Seminar on Procedural Innovation at the University of Nottingham in
November 2018. I am indebted to the comments of participants at the seminar and in
particular to the written comments of Jordi Ferrer. I would also like to thank the Editors,
Renaud Colson and Stewart Field, for their comments.
This is an open access article under the terms of the Creative Commons AttributionLicense, which permits use, distribution
and reproduction in any medium, provided the original work is properly cited.
ß2019 The Authors. Journal of Law and Society published by JohnWiley & Sons Ltd on behalf of Cardiff University (CU)
treatment of offenders, towards a `new penology' which is concerned with
managing risk and `risky' individuals in terms of the danger they pose.
1
The
increasing resort to intelligence-led policing that this shift entails has led to a
rise in the use of secret evidence which poses challenges to the way
adjudication has traditionally been managed in both civil and criminal
processes.
It is now quite common in criminal trials for defendants and their counsel
to be excluded when prosecutors apply to the court (in so-called `public
interest immunity' (PII) hearings) to have certain items of evidence kept out
of the proceedings in order to protect sources of information. Aside from
criminal proceedings, there are also a range of situations where non-
governmental parties may be excluded in so-called `cl osed material
procedures' (CMPs) in order to protect intelligence sources in the interests
of national secrecy or to protect inter-governmental international relations.
Although these procedures began life in the relatively obscure setting of the
Special Immigration Appeals Commission (SIAC) established to hear a
small number of immigration appeals where the Home Secretary's decision
to deport an individual was based on national security concerns, these
procedures have proliferated across such a large variety of different types of
proceeding that they have come to be described as a `parallel justice
system'.
2
After 9/11, in particular, their use expanded to cases involving
counter-terrorism measures, including preventive detention, control orders,
now TPIMs (Terrorism Prevention and Investigation Measures), proscription
of terrorist organizations, and domestic asset-freezing orders. They can also
apply in parole hearings, employment disputes, including security vetting,
care proceedings and now, under the Justice and Security Act 2013, all types
of civil litigation throughout the United Kingdom.
The need to protect `sensitive' information and the sources that have been
used to obtain it poses challenges to core values of open and adversarial
justice at the centre of our adjudicative system and has been causing
compromises to be made to these key features of the adversarial tradition.
Focusing specifically on the use of national security information, the New
Zealand Law Commission has posed the dilemma in terms of finding
solutions along a continuum between two extremes.
3
At one extreme there is
the ordinary traditional court process committed to open and natural justice ±
full disclosure of the evidence to both the public and the accused which fails
to address the need for protecting national security interests. At the other
extreme there is an entirely closed inquisitorial process where national
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1 M. Feeley and J. Simon, `Actuarial Justice: The Emerging New Criminal Law' in The
Futures of Criminology, ed. D. Nelken (1994) 173±202.
2 Amnesty International, Left in the Dark: The Use of Secret Evidence in the United
Kingdom (2012) 7.
3 New Zealand Law Commission, National Security Information in Proceedings (2015)
IP 38, para. 6.41.
ß2019 The Authors. Journal of Law and Society published by JohnWiley & Sons Ltd on behalf of Cardiff University (CU)
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