Tuesday, October 13, 2015

Secret "justice" for spies

Last year, in a major departure from judicial norms, the UK held a secret trial, resulting in a man being sent to prison for 42 months. The evidence justifying that conviction (and which failed to result in conviction on a more serious charge at a subsequent retrial) has been kept secret, with media notebooks being locked away and jurors threatened with prosecution if they reveal any details, but yesterday we finally got to begin to learn who had demanded it: Britain's spies, who had refused to provide information to the prosecution unless granted total secrecy. Fortunately, the Chief Justice is taking a dim view of this:

Thomas warned on Monday: “One thing the security services cannot do is to say they will not hand over material to the prosecution. That is absolutely impermissible.

“It cannot be for the security services to say: ‘Well we may not cooperate’, because that would suggest that they are not subject to the rule of law.”

He added: “One of the issues [in the appeal] is the public having confidence in the way the security services work. The accountability of the security services is another issue that arises.”

Thomas disclosed that both agencies has been invited to give evidence at the media’s appeal, which is resuming after being adjourned in July, but had declined to do so. “We did ask MI5 and MI6 to make submissions [to the court] but they chose not to.”

So, the spies demand secrecy (presumably so their claims cannot be publicly laughed at), then refuse to defend it in court when it is challenged. They really do seem to think they're above the law.

And in an example of the corrosive effects of secrecy, the British government is now relying on secret evidence and arguments to justify its original demands for secrecy:
The court of appeal has received statements from both the home secretary and the foreign secretary, in which they oppose the media’s appeal, but schedules attached to those statements have not been disclosed to the media’s lawyers. This, said Anthony Hudson QC, for the media, was “profoundly unfair”.

I'd go further: arguments which one party is proceduraly barred from viewing, let alone challenging, make a mockery of the adversial system and any claim to a just outcome. If this secrecy is upheld, it will tell us that the UK's courts are a disgrace, and that it is the spies who really rule. It will make it clear that the UK is a tyranny in law as well as in fact. UKanians who don't like that either need to start doing something about it, or flee to a more democratic jurisdiction.