Special advocates compromise justice

At the moment, the government is currently legislating to introduce a special advocate system in some immigration and terrorism cases. For those who don't know, this would basically allow the government to use secret evidence in those cases, with the defence's only chance to contest it coming through a security-cleared "special advocate" who is forbidden to communicate with or discuss the case with them once they have been shown the evidence. Any reasonable person would regard this as a mockery of a judicial process, designed to add a veneer of respectability to a fundamentally unfair process. And it seems that Britain's Law Lords agree. In a case today - Secretary of State for the Home Department v. MB (FC) (Appellant) [2007] UKHL 46 - they found that in two cases the special advocate system had compromised the right to a fair trial:

In the case of MB, a Kuwaiti-born British national, and AF, a UK-Libyan, Lord Bingham said claims that they had been denied a fair trial were credible.

"I have difficulty in accepting that MB has enjoyed a substantial measure of procedural justice, or that the very essence of the right to fair hearing has not been impaired," said the Lord.

"The right to a fair hearing is fundamental. In the absence of derogation [opting out of human rights law] it must be protected. It seems to me that it was not."

The actual judgement is even more scathing. The whole of the case against MB was classified, and he was denied even a summary of the "evidence" against him. Instead, he was "confronted by a bare, unsubstantiated assertion which he could do no more than deny". In another case - that of AF - it was difficult to find even that; the police had not alleged involvement in terrorism in his interviews with them, leaving him with no idea of the case against him, and no way of effectively contesting it. This was simply a mockery of justice, and so both cases were referred back to the relevant judge with a reminder that they must be interpreted so as to be compatible with the right to a fair trial affirmed in the UK Human Rights Act and ECHR.

The evidence from overseas that special advocates compromise the right to a fair trial is strong, and we should not allow this system to become established in New Zealand. Instead, we should insist on the right to a fair trial - including the right of the accused to hear and effectively contest all of the evidence against them.