An update from Jo on the OpenDemocracy blog – Secret Courts: 8 nightmare scenarios now possible in Britain. In the article, she lays out four scenarios based on real-world case studies, and then imagines how they might proceed now that secret courts are a reality, and then four further imaginary cases demonstrating how Closed Material Procedures may operate in future..
Closed Material Procedures (or “CMPs”) mean that one party is not able to take part in either part or the whole of a trial. This party will almost always be a civilian who is bringing a claim against a government agency. It could be a civilian who is the defendant in a case. The government and its lawyers are present during the CMP. The civilian and their lawyer
- cannot be present,
- cannot see the evidence the government is relying upon (and which is said to be national security sensitive information),
- cannot know the government’s case on this evidence,
- cannot challenge this evidence or the government’s case and
- cannot know the reasons for the judge’s decision on that evidence and therefore (at least a part of) their case.
The civilian will be told whether they have won or lost, but not the full reasons why.
And finally, she lays out what we can do about it!
The first step is vigilance. The legal profession, journalists and campaigners need to develop a system whereby any application for a CMP is registered with as much information about the case as is lawfully available – for example case number, details of the parties, particulars of claim and other pleadings, case summary (if available), issues raised by the claim and defence. The media needs to be encouraged or persuaded to report these cases frequently and regularly, and as soon as they are aware of a new case as the Independent and Guardian have done recently
Secondly, those concerned about the use and spread of CMPs need to liaise and work together. Human rights/civil liberties NGOs, academics, journalists, lawyers, politicians and the general public can all assist one another in this work. No popular movement against the spread of secret courts, and a secret body of law, will be possible without collaboration and cooperation.
Thirdly and related, any official report or review of the operation of CMPs needs to be properly examined and scrutinised, and questions asked.