Thursday, June 11, 2009

Another defeat for secret evidence

A key part of the UK's draconian system of "control orders" for alleged terrorists is the use of secret evidence. When applying for a control order, the government does not have to provide the full evidence - or even the full allegations to the victim. Instead, it can keep these secret (for "security reasons", of course). While the victim is allowed a "special advocate" who can view the closed evidence, they are forbidden from discussing it with their client (meaning they can't ask them how it could be disproved), with the effect that their case is effectively hamstrung from the beginning.

Fortunately, that system is now effectively dead, after the UK's law lords unanimously ruled that the use of secret evidence in issuing control orders violates the right to a fair trial.

The full judgement is here [PDF]. As usual with these judgements, it contains some strong language in defence of human rights. From the BBC:

Ruling in favour of the men Lord Phillips of Worth Matravers, the senior Law Lord on the case, said: "A trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him.

"If the wider public are to have confidence in the justice system, they need to be able to see that justice is done rather than being asked to take it on trust.

"The best way of producing a fair trial is to ensure that a party to it has the fullest information of both the allegations that are made against him and the evidence relied upon in support of those allegations."

Thanks to this ruling, the relevant control orders will have to be reheard, with the victims of those orders given full access to the evidence and allegations against them. The UK's secretive control freak spies won't like that - but it is the only way to get a just outcome. We cannot simply take it on their word.

But this case also has relevance for New Zealand. Both the Terrorism Suppression Act 2002 and the Immigration Bill (currently awaiting its committee stage) use exactly this system of secret evidence with special advocates which the Law Lords (and the ECHR, and IIRC the Canadian Supreme Court) have found incompatible with the right to a fair trial. In the wake of this ruling, the government should remove those provisions, and restore the right to a fair trial in New Zealand.