By Dominic Casciani
Scales of Justice: Contrary to secret evidence, says report
The increasing use of secret evidence is weakening the credibility of British courts, says a human rights group.
Legal campaigners Justice says more cases are now being heard involving evidence withheld from defendants.
The critical report comes ahead of a major Law Lords judgement on secret material against terrorism suspects.
The Lords have been asked to rule whether people whose movements are restricted by a control order must hear more of the case against them.
EXAMPLES OF SECRET EVIDENCE
Control order cases
Asset freezing applications
Gagging order applications
Closed criminal trials
The major report from Justice, a legal group supported by many of the UK's most eminent lawyers, says since 1997 Parliament has legislated 14 times to allow the increased use of anonymised evidence and closed hearings.
Some of the measures are specific to England and Wales but other elements cover all of the UK.
The report says there has been a long legal tradition in the UK of ensuring that a person who is accused of an offence has the right to know and challenge the evidence against them.
But Justice says the UK has now become a "pioneer" of secret evidence which is undermining British traditions of open justice.
The report criticises control order cases, special measures used to restrict the liberty of terrorism suspects who are not charged with an offence.
It says that in some cases the suspects have had their liberty curtailed while being "unaware" of even a singled detailed allegation.
The cases coming before the Law Lords on Wednesday focus on this point, with the men involved complaining they cannot successfully challenge the Home Office-imposed orders because they don't know what they are accused of.
But the report questions similar use of secret evidence in some immigration hearings where people who are accused of being a threat to national security.
"This report calls for an end to the use of secret evidence," says Justice.
"Secret evidence is unreliable, unfair, undemocratic, unnecessary and damaging to both national security and the integrity of Britain's courts."
It goes on to warn the government must remember the lessons learned from the Star Chamber, an infamous secret court used for political ends by English monarchs until the civil war.
WHAT ARE CONTROL ORDERS?
Restrict movements of terror suspects
Includes tagging and curfews
Bans on who they can meet and talk to
Evidence mostly secret
17 in force as of March 2009
"The semblance of justice is not justice, however senior the judges involved," says the report.
"After all, the fact that some of the most eminent jurists in English legal history were members did not make the proceedings of Star Chamber any less notorious.
"This is no dry lesson in constitutional history, however. Secret evidence undermines the tradition of open justice this country is famous for. It weakens the credibility of British courts as places where justice is done."
Ministers argue the rules around secret evidence are carefully drawn to protect national security while ensuring suspects get a fair trial.
The UK's system of "special advocates", lawyers who challenge secret evidence, without ever disclosing it to their client, was first introduced in an attempt to improve fairness in immigration cases where evidence was previously kept from the defendant.
It says changes over the last 10 years mean that secret evidence can now be used in a far wider range of cases including parole hearings, asset-freezing, employment tribunals, planning tribunals and even Anti-Social Behaviour Orders applications.