Secrecy, Accountability and the Use of the Independent Reviewer of Terrorism Legislation in Court Proceedings

The use of secret evidence in terrorism trials has sustained significant academic critique in recent years, particularly in relation to special advocates in UK civil terrorism proceedings. Overlooked has been the use by courts of material from the reports of the UK's Independent Reviewer of Terrorism Legislation, an office established to review anti-terrorism laws. The Independent Reviewer may see classified material from intelligence and security agencies if necessary to carry out those reviews. The office thus has unprecedented access to material that is typically unavailable to courts. The conclusions drawn by the Independent Reviewer from this material have been adduced in legal proceedings in the UK and at the ECtHR. This paper documents how, when, why, and by whom material produced by the Independent Reviewer is used, both in UK courts and at the ECtHR. The purpose is to highlight an under-researched area of academic inquiry into the use of secret evidence in terrorism trials.

Judicial Control over the Use of Closed Material Procedures

This paper identifies the key challenges posed by the innate secrecy of closed material procedures (CMPs), highlighting the concomitant importance of judicial control over their use. Judicial independence is of fundamental importance in any democracy of which judicial decision-making powers are an essential element, even in the national security context. In the UK, the Justice and Security Act 2013 extended the availability of CMPs to all civil proceedings. The Act appears to preserve judicial decision-making power at the initial stage of ordering the use of a CMP, however it does not adequately address concerns regarding the way such power is structured. This paper advances an alternative framework, which delineates the steps of the decision-making process and assigns varying degrees of deference in accordance with the appropriate limits of judicial and executive power. This approach seeks to reconcile underlying competing interests and offer a more rigorous approach to proceedings.

Assuming Facts as an Alternative to Secret Evidence

The UK Investigatory Powers Tribunal, the court responsible for determining human rights claims with regards to state surveillance, has developed procedure which serves to reduce the reliance on secret evidence in a case. Rather than establishing security-sensitive facts regarding the UK's surveillance regime in closed proceedings, the procedure involves assuming certain facts regarding the nature of the surveillance regime to be true. The Tribunal then usually rules on the legality of the regime – on the basis of assumed facts – in open proceedings, while primarily only using closed sessions to assess specific instances of surveillance.
The paper assesses this form of procedure and the impact it has on accountability. It is argued that while it may help to promote greater openness surrounding the judicial process in surveillance cases, it brings with its own limitations from the perspective of holding the Government to account with regards to its surveillance practices.