Tag Archive for 'secret_evidence'

No safeguards against mistakes when evidence is “secret”

This morning Radio 4 reported the worrying news that two, separate sittings of the Special Immigration Appeals Commissions (SIAC) heard cases based on mutually contradictory, secret evidence supplied by MI5. SAIC is the controversial court, which makes decisions on expulsion of foreign nationals, on the grounds of national security, from the UK. It is controversial because hearings and rulings are mostly held in secret. Even the defendants often don’t know the evidence, or even, charges against them – special legal representatives are appointed who are required not to divulge the secret evidence even to the person they are attempting to defend.

Under the secretive arrangements it would normally be impossible for a defendant’s legal representatives to discover such a flaw in the prosecution case. The matter only came to light because, by co-incidence, the same barrister was representing the two men concerned. The judge in the second case was none-too impressed, the BBC reports:

In a ruling produced in May, but only now made public, the judge accepted the mistake was not deliberate.
But Mr Justice Newman went on to say the “administration of justice is put at risk” if such failures occur.

The judge accepted that MI5 had a mistake. Since he’s the only independent person to know the details we have to accept his judgement. What concerns me, however, is what the judge could have said but didn’t (or at least it if he did, it’s been kept secret): In a standard high court case all the necessary information would be in the public domain, acting as a safeguard against such “failures” in the “administration of justice”. What are the safeguards when the court case is held in secret and the defendants never find out what they were actually accused of? None, as far as I can see.

Of course intelligence sources need protecting, but we need to also recognise that intelligence is not scientific. “Intelligence” is usually subjective, often based on hunches and rumours. We rely on our intelligence agents to have sufficient knowledge and experience of their domain to make good judgements about which leads to follow. Yet the nature of the business is such that mistakes and failures, such as Forest Gate, are inevitable. We therefore need safeguards to assure justice. I’m afraid the only safeguard I can think of is the right, enshrined under Article 6 of the European Convention of Human Rights, to a public hearing.

Incidentally the BBC report gives no details on what actually become of the two defendants, Abu Doha and “MK”. Presumably that’s still secret.