Friday, 22 March 2013

Supreme Court has duty to hold secret hearings...

Apparently there has been some controversy about whether the Supreme Court should be sitting in private to consider an appeal against a judgment of the Court of Appeal which considered a first instance judgment of Mitting J which was handed down partly by way of a closed judgment.

What's to consider?  The Supreme Court has a statutory duty to hear civil appeals from the Court of Appeal, Civil Division, where it or the Court below has granted permission to appeal:

Section 40(2) Constitutional Reform Act 2005:

An appeal lies to the Court from any order or judgment of the Court of Appeal in England and Wales in civil proceedings.
The Court would breach its statutory duty to hear appeals from the Court of Appeal if it refused to consider a closed judgment given by a lower Court which was integral to the consideration of that appeal.      There can be no other answer and it is not controversial.  Parliament has made provision for closed hearings and closed judgments (Chap 2 Part 6, Counter-Terrorism At 2008).  The Supreme Court is a slave to Parliament and cannot ride above Parliament's will.

I can't understand the Court's reluctance to do its duty.  Lord Neuberger's statement is below - the only relevant bit is highlighted.  The Supreme Court is special, no doubt, but until its constitutional position is changed, it has to do as it is told by Parliament.

Lord Neuberger, President of the Supreme Court, made the following statement in open court this afternoon:

“Yesterday morning, having heard full argument on the issue the previous day, we decided, for reasons to be given later - and, it should be added, by a majority of six to three - that we had power to consider the closed judgment of Mr Justice Mitting (“the closed judgment”) in this case. This would involve part of this hearing being conducted in private without Bank Mellat or its representatives being present. We also indicated that, on the basis of the arguments we had so far heard, we were not persuaded that it was necessary to take such a course.

“The substantive appeal concerns the validity of an order made by the Treasury in 2009, which significantly and detrimentally affected the Bank’s business. We have also heard the whole of the Bank’s argument and certain interested parties and in response from the Treasury on the substantive appeal. The Treasury now applies for us to look at, and hear brief submissions on, the closed judgment of Mr Justice Mitting on the basis that we cannot be wholly confident of disposing of the bank’s appeal justly without considering the closed judgment. We are very dubious indeed whether this will turn out to be the case and we are also sceptical whether as full an open gist of the judgment has been provided as should have been possible. However, an incidental vice of the closed material procedure is that unless and until an appellate court sees the judgment it often cannot be sure its contents will be irrelevant or that its contents have been fully gisted.

“The closed judgment is, we have been told, much briefer than the main open judgment of Mitting J, but it may just conceivably contain relevant material for the purpose of disposing of this appeal. It is closed because it contains material which he decided should not be made public on the grounds of public interest and national security. We have reluctantly decided that we cannot consider the closed judgment without having a closed hearing, as otherwise the contents of the closed judgment would be revealed to the public, including Bank Mellat and its representatives.

“It must be emphasised that this is a decision which is reached with great reluctance by all members of the court; indeed it is a majority decision. No judge can face with equanimity the prospect of a hearing, or any part of a hearing, which is not only in private, but involves one of the parties not being present or represented at the hearing and not even knowing what is said either at the hearing or in a judgment in so far as it discusses what was said or produced by way of evidence at the closed hearing. Nonetheless, as Parliament has decided that, in certain circumstances, such a procedure is necessary and permissible in a trial before a Judge, we have concluded that, on an appeal from a decision in a case where a Judge has considered closed material and given a closed judgment, it may be necessary for this court to go into closed session in order to dispose of the appeal justly.

“We emphasise that (i) this is course which is to be taken only where the court is satisfied that it is absolutely necessary to dispose of the appeal justly, (ii) the party who is excluded, in this case Bank Mellat should be given as much information as possible about the content of the evidence and arguments presented at any closed hearing and the contents of any closed judgment, (iii) the interests of that party should be protected as far as possible by the full involvement of special advocates at the closed hearing, and (iv) when we give our judgment, we will try to avoid placing any reliance on the closed material, and, in so far as it is necessary to do so, to keep any reliance to a minimum and give as much detail about that material to Bank Mellat and the public as we properly can."

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