The use of secret evidence has something of a poor reputation in English law. The idea that someone could be imprisoned – for instance – without having the opportunity to challenge the evidence against them has never been a wildly popular one, but the infamous reputation of Star Chamber in the days of James I and Charles I helped to cement the idea that holding secret hearings of evidence in the absence of an accused was generally a bad thing.

It seems ironic, then, that the use of special advocates – a procedure that was introduced originally to avoid the unfairness of such secret hearings – has now become closely associated with them. A ‘perversion of justice’ was how the proceedings of the Special Immigration Appeals Commission (‘SIAC’), in which special advocates play a large part, were described by Amnesty International in December 2003. And in July 2004, the appointment of a special advocate by the Parole Board to consider secret evidence was likened to the US treatment of detainees in Guantánamo Bay. And yet the use of special advocates in certain kinds of proceedings has been approved by both the House of Lords and the European Court of Human Rights. How to explain this apparent discrepancy between official approval and public approbation of special advocates?

The truth is a twisted affair. Special advocates are a recent innovation in English law. They were first introduced by the Special Immigration Appeals Commission Act 1997, following the judgment of the European Court of Human Rights in Chahal v United Kingdom the previous year. Chahal was an Indian national whom the Home Secretary wanted to deport, among other reasons, because of his alleged involvement in Sikh terrorism. For himself, Chahal claimed that if returned to India, he would likely be tortured by the Punjabi authorities concerning his role as a Sikh activist. His complaint to Strasbourg was that, although judicial review was available to challenge the Home Secretary’s decision, the effective determination was by an internal Home Office advisory panel (the so-called ‘three wise men’ procedure) that met in private to consider sensitive intelligence material, before which the appellant was not represented. The Strasbourg Court agreed that the existing procedure was unfair and noted the submissions of Amnesty International, Liberty and other human rights NGOs that one way around the problem of conducting hearings involving the use of sensitive intelligence material would be to follow the Canadian model of using security-cleared counsel who might challenge the evidence relied upon by the government in closed sessions on behalf of the appellant.

Accordingly, SIAC was established by the 1997 Act, making provision for the use of ‘special advocates’ who would be appointed by the Attorney General to represent an appellant’s interests in relation to closed proceedings (i.e. proceedings involving evidence too sensitive to be disclosed to the appellant for reasons of national security). Although a special advocate would be appointed to represent an appellant’s interest, it was specifically provided that an advocate “shall not be responsible to the person whose interests he is appointed to represent“, in view of the difficulties that might otherwise arise from the special advocate not being allowed to discuss the closed evidence with the appellant.

Besides SIAC cases, the use of special advocates was subsequently authorised by Parliament in proceedings before the Proscribed Organisations Appeal Commission (‘POAC’), the Pathogens Access Appeal Commission (‘PAAC’), the Employment Tribunal (when hearing race discrimination claims from government employees in fields relating to national security) and 2 specialist Northern Ireland Tribunals.

What is more novel has been the adoption of this procedure by the higher courts to get around the potential unfairness of ex parte applications by the prosecution against disclosure of relevant evidence on public interest grounds. Originally the government had opposed this development, but it was approved in this particular context in 2003 by the Strasbourg Court in Edwards and Lewis v United Kingdom and in February 2004 by the House of Lords in H and C. Both courts noted that such a procedure was highly exceptional, but nonetheless could be adopted to enhance the fairness of the proceedings in respect of an accused (who would otherwise be unrepresented in public interest immunity hearings).

A far more unfortunate development is the recent judgment of the Court of Appeal in Roberts v Parole Board, in which JUSTICE intervened. The decision of the Court raises serious concerns about the accountability of inferior tribunals such as the Parole Board adopting procedures that severely impact the right to fair proceedings.

In Roberts, the Parole Board was considering the parole of a 68-year old mandatory life prisoner who, until recently, had been housed in an open prison. In the course of its deliberations, the Board received secret evidence from the Secretary of State on the basis that the evidence would not be disclosed to Mr Roberts or his lawyers. It was at this point that the Parole Board sought to appoint a special advocate who would act on Mr Robert’s behalf in respect of the secret evidence but who would not be directly responsible to him. An earlier High Court ruling upheld the Parole Board’s decision as lawful. The main issues on appeal, then, were (1) whether the Parole Board had the statutory power to adopt a special advocate procedure; and (2) whether the use of a special advocate in such proceedings was compatible with the appellant’s Convention rights, chiefly Article 5(4) ECHR.

The obvious difference between the Parole Board decision to appoint a special advocate and other cases is that the Parole Board is not a higher court (with the kind of jurisdiction that would allow it broad powers to adopt new procedures) nor did it have express parliamentary approval to do so (i.e. unlike the other 6 administrative tribunals that have used special advocates). Instead, the Court of Appeal fell back on the vague language of the 1991 Criminal Justice Act to justify the Parole Board’s appointment. In doing so, the Court of Appeal was apparently untroubled by the lack of any specific democratic sanction for an inferior tribunal adopting such an exceptional procedure, and similarly unperturbed by what would seem to be a plain distinction between the use of special advocates to help determine preliminary matters (as approved by Strasbourg and the House of Lords) and using them to assist in determining the core issues in proceedings.

Whatever the merits for introducing exceptional procedures might be, the use of special advocates is an obvious and serious restriction on the right of individuals to know the case against them and a clear interference with the right to fair proceedings in general. While the use of special advocates may enhance fairness in some cases, it would seem a dangerous development to allow their extension unchecked into all areas of administrative law. If it would be permissible for the parole board to use them in relation to parole hearings, then it is not hard to imagine situations where other tribunals faced with claims of sensitive evidence might seek to invent similar procedures – a revenue hearing considering material from a covert source, for instance. If there is a case for using special advocates in such situations, then it does not help that that case is being made by unelected officials on the basis of undisclosed evidence. On the contrary, the more exceptional the procedure, the greater the need for express parliamentary approval. For if a democratic society has a need for special procedures, it should at least ensure that they are adopted openly and not by stealth.

ERIC METCALFE- 31 August 2004