The Justice & Security Act was granted the Royal Assent in April and that has to be a good thing. After all who wouldn’t want the government to ensure that the democracy and freedoms we enjoy are safeguarded? None of us ever wants to hear about or see the consequences of another 7/11, so doesn’t it make sense for the government to enact yet another piece of legislation, in support of our security services ensuring that?
But that’s not what’s really bothering all the Barristers and Queen’s Counsels who might potentially be asked to present cases under this legislation. And it isn’t what both MPs and Members of the House of Lords have objected to, and sought to amend. CMPs, that’s what the lawyers and indeed all of us should be concerned about. The extension and the casual proliferation of CMPs.
Now, to what can I liken a CMP?
Well, I guess you could say it was the equivalent of being arrested, and then charged with murder. You know what you’ve been charged with, but your lawyers have received very little evidence supporting those charges. In fact, all your lawyers have received is a brief summary of the evidence being used to support the charges against you.That is because the prosecution has decided, that to provide full disclosure to the defence counsel would not be a very good idea, and what is more the judge has agreed.
A CMP (Closed Material Procedure hearing) is what counsel for the government can request in extradition hearings: deportation hearings: hearings where the complainant is seeking damages for their mistreatment at the hands of MI6/MI5, in short any civil proceedings in which evidence pertinent to National Security might be disclosed. In the words of one UK civil liberties pressure group this creates a state of affairs whereby,
“The credibility of the civil justice system is impaired, due to one party being routinely favoured over another in these hearings.”
For example,with the advent of CMPs hearsay evidence and indeed claims made by the security services can be presented in court, just not to defendants. As for those facing deportation or extradition, without the evidence adduced against them being disclosed, they’d be effectively defending themselves with one arm tied behind their backs. 57 Barristers, Special Advocates linked to this procedure, have argued that despite the intention to give those subject to a CMP a summary of the evidence against them, these hearings would remain fundamentally unfair. According to these lawyers it would represent,
“A departure from the foundational principle of natural justice, that all parties should be entitled to see and challenge all the evidence relied upon before the court and to combat that evidence by calling evidence of their own.”
Ironically these practitioners argue that a less restrictive regime is currently being employed in America, with a measure of success. When Binyam Mohammed returned from his lengthy vacation, courtesy of Her Majesty’s secret service and the U.S government, he was able to successfully sue the British Government for the collusion of the secret services in his torture by the C.I.A.The government tried to suppress evidence vital to Mr Mohammed’s case, on the grounds of National Security, it failed. Had his case taken place under the shadow of this new legislation, in spite of the injustices he suffered, the British government would have had the upper hand.