Imagine a scenario in which you are whisked away in the middle of the night by armed police officers and then informed that you will tried in a secret court – which bars you from having legal representative.
Imagine that you are then prevented from seeing the evidence, or the witness testimony against you. Nor are you able to submit evidence – or even enter the courtroom. In fact, you are not even allowed to discover the reason you have been brought to court. In some cases, you may not even be told that you have been tried in court, until the police turn up outside your day and cart you off to jail, to serve your sentence.
Sounds like something right out of Nazi Germany or the KGB doesn’t it? It couldn’t happen here in Britain right? Newsflash: It already has. For MPs have voted in the Justice and Security Bill which has already been passed into law and is now waiting for Royal Assent.
The Bill gives British courts the mandate to hold both criminal – and civil – cases in private and prevents suspects from hearing the evidence against them. It also enhances the powers of the Intelligence and Security Committee – which was established by the Intelligence Services Act in 1994.
It effectively makes them exempt from having to supply documents under the Freedom of Information Act and extends their right to conduct surveillance on the internet.
The government claim that secrecy is necessary for “the interests of national security” and added that protection was necessary for witnesses involved in giving evidence against the accused.
Suspects who have been excluded from secret court proceedings would be represented by a ‘special advocate’ – a security cleared lawyer chosen by the government or prosecutor, who is appointed on their behalf.
At the end of court hearing, the person being tried may win or lose their case without knowing why, as the court’s reasoning will likely be “classified”.
The Bill effectively paves the way for a government authority or any “applicant” to trial individuals in this way. In effect, it spells the end of fair and open trials in the UK.
This also paves the way for financial organisations and commercial companies to hold court cases in secret – as there is currently no provision in the law which prevents it.
Caroline Lucas of the Green Party tabled two amendments. Firstly to block secret court proceedings in civil cases; and secondly to put an obligation on judges to consider “public interest in the fair and open administration of justice” before launching any secret court proceedings.
MPs voted against the amendments and restrictions which would have meant that secret courts would only be used as a last resort. That amendment was voted down by 174 votes to 158. They also voted down another amendment which would have ensured that secret courts, also known as Closed Material Procedures would only be used when judges had decided that “national security” considerations specifically outweighed the public interest.
These amendments would prevent secrecy in cases such as the Mark Kennedy case – the policeman that infiltrated an environmental movement and the Bob Lambert case. Bob Lambert was a policeman that stole the identity of a dead child to infiltrate an animal rights group. The inclusion of civil cases in this legislation would thus prevent the public from ever finding out about such cases again.
Critics of the secret justice proposals are wary of any reassurances from ministers that they will be limited to national security cases. They point out that such arguments would have prevented the public from learning about MI5′s role in the torture of Binyam Mohamed between 2002 and 2004, or the role Jack Straw played in sending British Muslims on secret rendition flights to Guantánamo Bay after 9/11.
Furthermore, the joint committee on human rights heard evidence that national security concerns could see the use of secret court sessions over the litigation of police stop-and-search operations.
Amnesty International UK Campaigns Director Tim Hancock said that the Bill represented a “terrible era for British justice”.
He said: “After fierce lobbying by the government, peers have failed to restore even minimal amendments previously included to this deeply damaging Bill. Victims of human rights violations like rendition and torture will be prevented from seeing secret evidence about their own case. It’s an insult to them and a stain on our justice system. Having refused to listen to well-founded criticism, the government has created a very un-British secret justice system.”
These new changes to the British Justice System become particularly more concerning when it is paired with the cutbacks in legal aid and the government’s call to abolish the Human Rights Act and limit the role of the European Court of Human Rights. The government claims that human rights have all too often been misused by criminals to evade justice and point to cases highlighted by the mainstream media to justify this.
Others argue that the ambiguity of the wording in the Human Rights Act is at fault – not the Act itself.
But it is also true that the Act’s existence has made it rare for applicants to go to the European Court of Human Rights and the case law developed in UK courts since 2000 means that the EU has become less relevant.
Wanda Maddocks and her brother Ivan, hit the headlines after they were sentenced to five months and 2 months respectively by a secret court after attempting to remove their father John from a home where his family thought he was in danger of dying.
The pair were not present in court, nor were they represented by a lawyer, when the judgment was made – and the sentencing was not made public for six months.
Wanda is believed to be the first person to be jailed by the Court of Protection, which settles the affairs of those too ill to make their own decisions.
She told the Mail: “I walked out of the care home and saw a small white van, then two female police officers approached me with two court officers. They told me it was almost unheard of for somebody to be jailed like that in a civil hearing without first being given the chance to explain themselves.”
Wanda told of how the Court threatened to seize her family’s assets if she dared to speak out about her case or ordeal. Her father eventually died in the care home – which denied causing his death. Ironically, a statement released from the Ministry of Justice said that the government are in favour of open justice. A Ministry of Justice spokesperson said: ‘We do not comment on individual cases.
“The Government’s view is that court cases should be held in public and the judgments published, unless a judge concludes that the case should be kept private.”
Richard Pell, partner at Brethertons LLP said that the whole concept of secret courts is “troubling”. He said: “The trouble is you don’t actually know that a trial has taken place, because it is secret. This needs to be more closely investigated before we go down that route. It has the potential to violate human rights.
“To learn of a case such as [Maddock's] where a person is sentenced to imprisonment without even being present, or having any legal representation is a very worrying precedent, which needs to be stamped on.”
Another case, recently surfaced in America, where the US government prevented a judge from publicising a ruling made by a secret court, regarding a judgement on domestic surveillance.
Although the government insists that Secret Courts will only be used in cases of terrorism or national security, the definition of terrorism has become so broad nowadays that it encompasses almost every minor and major crime committed. A report published by campaign group Big Brother Watch said that powers designed to combat terrorism and serious crime has been used to catch dog owners whose pets fouled the streets and to investigate breaches of the smoking ban.
Anti-terrorism legislation has also been used to allow councils to investigate whether homeowners were putting their bins out on the right date. Perhaps more seriously, Section 44 of the Terrorism Act allowed police and the Home Office to stop and search any individual without suspicion – but was later ruled illegal by the European Court of Human Rights in 2010.
Therefore, with existing anti-terrorism laws being gradually expanded or used to include minor ‘offences’, it is more than a little feasible that additional powers granted under the Justice and Security Bill could one day become the norm, rather than the exception.
This becomes all the more worrying when taken in conjunction with the government’s call to abolish the Human Rights Act of 1998. And just why do they want to abolish the Human Rights Act? To answer this, we need look no further than Article 6 of the Act, which sets out a person’s right to a fair trial.
Section 3 of Article 6, requires that a person who is accused of a crime should be informed properly in a language that he understands of the accusations made against them. It requires that a person should have the freedom to choose their own defence and to be given free representation if he cannot pay for it. In addition, they must be able to cross-examine the witness. When these rights are not upheld, it can be challenged in a Chancery Division Court, Queen’s Bench, or alternatively, a Crown Court.
Another possible solution may also lie in the Bill of Rights 1689. Although written in old English, one of the first tenants of the law is that it cannot be repealed under any circumstances and has thus remained in place for centuries.
It also guarantees the right to a jury trial and like many human rights laws, it is founded upon the principle of common law. Under common law, the only three responsibilities to a citizen are, to cause no harm, not to cause loss to property and not to violate the terms of a contract.
In 1297, the Magna Carta came into force which holds that no freeman shall be deprived of his liberty unless it is by the lawful judgement of his peers.
Therefore, when faced with the possibility of arbitrary arrest and secret imprisonment, there are a number of laws that exist with the potential to overrule unlawful judgements and seek compensation. But the question is, will people be manipulated into giving up these rights which were set out under common law? Ultimately, we must turn the tables on those who argue that widespread surveillance and secrecy is necessary for national security and ask: If the government has nothing to hide and is acting within the law, then why the secrecy?
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