Sunday, 10 June 2012

More on Justice and Security.......

One of my learned friends, Tom Hickman of Blackstone, has been analysing the JSB here.

I have one or two observations to make:

1. This is the test for PII:

"It is true that the public interest which demands that the evidence be
withheld has to be weighed against the public interest in the
administration of justice that courts should have the fullest possible
access to all relevant material (Rex v. Hardy (1794) 24 State Tr. 199,
808; Marks v. Beyfus (1890) 25 Q.B.D. 494: Conway v. Rimmer[1968] AC 910); but once the former public interest is held to outweigh the latter, the evidence cannot in any circumstances be admitted. It is not a privilege which may be waived by the Crown
(see Marks v. Beyfus at p. 500) or by anyone else."

Lord Simon of Glaisdale in Reg. v. Lewes Justices, Ex parte
Secretary of State for the Home Department
[1973] A.C. 388 at p. 407

2. The test for granting a CMP is the "court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security".  This is the same test as PII - damage to national security always outweighs all other factors.  No Court has the power to damage national security.  

3. HMG is going to elect for PII rather than CMP where it does not want to reveal the evidence to a Special Advocate - that is the only extra person who is going to see the evidence in a CMP as opposed to a PII application.  It is going to be very rare for the evidence to be so sensitive that it can be seen by a High Court Judge (who has no security clearance and is just trusted by reason of his office) and a Special Advocate who has the highest levels of security clearance.  There might be circumstances where evidence sourced from a foreign intelligence agency has been obtained pursuant to an agreement which permits it to be seen by a Judge but not by a Special Advocate.  There will also be one other scenario where HMG may chose PII over CMP:  If a PII application is refused then usually the Claimant wins his case as HMG would otherwise be in breach of the disclosure order and liable to be struck out on a Unless Order.  If a CMP application fails and HMG refuses to disclose then the Court has the power to order that damaging concessions are made by HMG - that power does not exist on a PII application. Accordingly PII may be claimed where HMG fears the consequences of failure of a CMP application.  That however, will be a rare circumstance, and one which will still result in HMG conceding the claim and paying compensation and therefore justice will still be served to that degree.

4. If HMG made a PII application which failed because the Court thought the evidence could be used within a CMP - and therefore did not need to be witheld via PII, it would be a very brave Govt which did not go on to apply for a CMP.  Ultimately - if HMG thought a CMP was not appropriate for some  reason it would have to concede the claim - again against its interests.

5. Criticism is made that the Court cannot of its own motion, nor can the other party to the proceedings invoke the CMP procedure - the only applicant can be the possessor of the evidence.  This must be correct - only the disclosing party will be a position to know or be advised of the damage to national security - not the Court nor the other party.  

6. It is suggested that the disclosing party will seek a CMP where the sensitive evidence is in its favour and seek PII where it is not.  If the procedures were abused in that way - the Court would very likely refuse PII and put pressure on HMG to seek a CMP - it would be a very brave Govt who would go head to head with  a High Court judge in those circumstances - and a CMP would be the most likely outcome every time.

7. Some of these points flow from the fact that with national security, most of the cards are in HMG's hands - it is very difficult for the Court or the other party to challenge HMG's assertion of the likely damage to national security if evidence were to be released openly.  The ball is in HMG's court as to whether to apply for PII or CMPs.  This is how it should be - national security is a matter for the Executive (with Parliamentary oversight - see Part 1 of the Bill) and not the judiciary; as Lord Diplock held in CCSU:

National security is the responsibility of the executive government; what action is needed to protect its interests is, as the cases cited by my learned friend, Lord Roskill, establish and common sense itself dictates, a matter upon which those upon whom the responsibility rests, and not the courts of justice, must have the last word. It is par excellence a non-justiciable question. The judicial process is totally inept to deal with the sort of problems which it involves.

That may not seem fair or just - but it is the reality and this Bill has to deal with that reality - PII is an unjust blunt instrument - and this Bill gives a more just and more intelligent device to HMG, by which it can release more classified evidence to the Court - that must benefit the administration of justice - even if it still means that the whole picture - the whole truth may from time to time be withheld - because the interests of the State come before the interests of the litigating citizen and the administration of justice.  If HMG abuse these powers, it is up to Parliament to expose them; not the Courts.   

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