Secretary of State requests use of secret courts for first time in Northern Ireland civil cases

The Royal Courts of Justice, Belfast

The Royal Courts of Justice, Belfast

By Barry McCaffrey

LAWYERS for the Secretary of State are to make a legal application for a court case in Northern Ireland to be held in secret for the first time.

However the move has raised concerns that potentially large numbers of Troubles-related cases involving the state and its intelligence services could be held behind closed doors.

The Detail has learned that lawyers for Theresa Villiers are to ask the High Court in Belfast to impose Closed Material Procedure (CMP) restrictions in a legal case being taken by a former dissident republican prisoner who is suing the Secretary of State for unlawful detention.

Earlier this month lawyers acting for Ms Villiers put solicitors acting for the former dissident inmate on notice that they would be making a legal application to the High Court to impose CMP measures to ensure that the lawsuit would be held behind closed doors.

Closed Material Procedure (CMP) restrictions allow government, police or intelligence agencies to request that a court case be held in secret and without the active participation of the opposing legal counsel and their client.

If approved, it will be the first time the secret court procedures, which were only introduced in June 2013, have been used in Northern Ireland.

Crucially the Justice and Security Act (2013) introduced last summer extended the use of secret courts to include civil hearings.

Legal experts believe that the use of secret court hearings could impact adversely on Northern Ireland, where there are currently a large number of civil cases pending against the government, PSNI, British army and the security services for alleged collusion and human rights abuses.

There was controversy last month after it was revealed that Metropolitan Police Chief, Sir Bernard Hogan-Howe, had attempted to use a secret court hearing to force a journalist to hand over correspondence with two SAS soldiers, who had allegedly been providing information to him.

The application for a secret hearing was rejected.

Read judgement here

It is also known that in May 2013 the Home Office requested the use of secret court procedures to defend a lawsuit being taken by IRA informer Martin Gartland, who alleged that he was denied MI5 support after being shot by IRA gunmen in the north of England in July 1999.

However it is the restrictive measures imposed in CMP cases which have caused most concern about its use in civil cases in Northern Ireland.

Under the secret court legislation neither the person who the CMP is being used against, or their lawyers, are permitted to have any active part in the closed door proceedings.

Instead a Special Advocate, who has been security vetted, will be appointed to represent him.

However, the Special Advocate is not allowed to communicate or take instructions from the client once any sensitive material has been disclosed to the court.

The individual who the CMP restrictions relate to is not allowed access to, or the right to challenge, the intelligence evidence which the state agencies put before the court against them.

CMP defendants may win or lose a case but because of the restrictive nature of evidence in the closed hearing cases judges are not obliged to give reasons for their decisions.

Security agencies want to use CMP measures to stop sensitive intelligence from being disclosed

Security agencies want to use CMP measures to stop sensitive intelligence from being disclosed

The UK government has defended the use of closed material hearings, stating that they allow cases involving national security issues to be heard rather than being aborted because intelligence agencies are not prepared to share sensitive evidence in open court.

However critics argue that the use of the secret court system in civil cases threatens the fundamental principles of open and natural justice.

CMP measures were previously only used during the last decade in anti-terror cases but can now be used by government agencies in civil cases.

Among those who have criticised the secret court measures are 57 of the Special Advocates, who are appointed to represent CMP defendants in the secret hearings.

London barrister, Martin Chamberlain QC, has been appointed by the courts as a Special Advocate in more than a dozen CMP cases over the last decade.

While the legal expert says that state agencies have the right to protect issues of national security he still has serious concerns over the use of CMP measures.

“I do not think they can always be described as fair,” he said.

“Whenever I have acted as a Special Advocate, I have done my best to try to undermine the government’s case – and sometimes I have succeeded – but not often.

“That is in part because, after seeing the closed material, I am prohibited from speaking to my client.

“If the state alleges that my client met a terrorist at a particular time, I cannot ask him whether he was there and if so, why.

“So I will never know if he had an alibi or an innocent explanation for the meeting; and nor will the court.

“The task of the Special Advocate was described by the late Lord Bingham, the internationally respected Lord Chief Justice and senior Law Lord, as like ‘taking blind shots at a hidden target’.”

In 2011, Northern Ireland’s former Lord Chief Justice and current Supreme Court Law Lord, Brian Kerr, expressed concerns about the use of CMP measures to prevent evidence of the state’s alleged involvement in torture from being made public.

“Evidence which has been insulated from challenge may positively mislead.

“It is precisely because of this that the right to know the case that one’s opponent makes and to have the opportunity to challenge it occupies such a central place in the concept of a fair trial.”

Read full judgement here.

With the Secretary of State expected to make the first application for a Closed Material Procedure (CMP) within weeks, a Northern Ireland Office spokesman defended the state’s right to use secret court proceedings to ensure the protection of national security issues stating:

“The government is strongly committed to open and transparent justice.

“However, sometimes justice cannot be fully delivered in open court because relevant material relating to national security is too sensitive to disclose.

“In such cases, the Justice and Security Act 2013 provided for closed proceedings in civil cases to allow proper consideration of all relevant material.

“Before an application for CMP can be made, the Secretary of State must consider making a claim for Public Interest Immunity (PII) in respect of the sensitive material.

“Having done so, a CMP application can be made and will be heard in court. The decision about whether to allow a CMP is made by the judge.”

Traditionally the secretary of state has used Public-interest immunity (PII) certificates to allow security agencies the right not to disclose evidence to the courts where it is judged that disclosure would be damaging to the public interest.

Solicitor Kevin Winters, who represents the former dissident prisoner, said he would oppose any attempt to impose CMP restrictions on his client’s lawsuit.

“There is a real concern that this draconian measure will be used by state agencies in hundreds of civil cases in Northern Ireland in which the government is being sued for serious human rights abuses.

“We will strenuously oppose it – secret justice is no justice.

“We can’t have something akin to a medieval star chamber where the Secretary of State and NIO dictate what should be disclosed to the court.

“In this particular case our client had his licence revoked but still has yet to find out exactly what the basis of the revocation was.

“He had to take Judicial Review proceedings to secure his release from custody, and despite that, we are still in the dark about the nature of the evidence which had been used to detain him.

“We lodged civil proceedings to seek damages for that unlawful detention and we are now faced with an application that undermines completely the maxim that justice must be done, but not only that, must be seen to be done."