5.24In this section, we note the different approaches adopted in the United Kingdom and Australia. Both jurisdictions have attempted to facilitate the use of national security information in civil proceedings in a way that protects the integrity of the information, but also affords appropriate protection to natural justice rights.
United Kingdom: Justice and Security Act 2013
5.25The Justice and Security Act 2013 authorises a generic closed material procedure (CMP) by which information may be considered by the court, special advocates and the Crown but not disclosed to the non-Crown party. The Act is supplemented by a comprehensive set of rules found in Part 82 of the Civil Procedure Rules that modify the procedural rules that would normally apply to a civil case.
5.26CMPs can apply to any proceeding (other than a criminal proceeding) in the higher courts. A CMP is ordered if disclosure of material in an open court would be damaging to interests of national security and if “it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration”.
5.27Special advocates may adduce evidence, cross-examine witnesses, make applications, seek directions from the court and make written submissions. Court permission is needed to communicate with the individual whose interests are being represented. The represented party may write to the special advocate, but the advocate can only acknowledge receipt of the communication.
5.28Following examination, a summary of the information is provided to all excluded parties where it is possible to do so without damaging national security.
5.29The special advocate process has been the subject of criticism. The limited contact between a special advocate and the party they represent is a major source of criticism, as it significantly impedes the special advocate from taking instructions from the represented person and in turn their ability to properly represent their interests.
5.30One of the most severe criticisms of both the Justice and Security Act 2013 specifically and the use of CMPs more generally is that, although the sensitive material will be used as evidence (as opposed to the evidence being excluded if public interest immunity is successfully claimed), failing to disclose it to one party may prejudice procedural fairness and result in an unfair outcome. This was noted by the United Kingdom Supreme Court with the observation that “evidence which has been insulated from challenge may positively mislead”. One possible way to overcome such a risk is to encourage greater disclosure of evidence in the summary provided by the special advocate. Lord Neuberger proposed that both open and closed judgments be given with as much information as possible to explain how the closed materials were important in reaching the relevant decision. He considered that, as government lawyers have a duty to the court as well as their client, all efforts should be made to avoid CMPs.
5.31Issues also arise in relation to the workload for a special advocate who is appointed as the sole advocate but may be required to consider a large quantity of information. In its Justice and Security Green Paper, the United Kingdom authorities noted that concerns were raised about late provision of materials to special advocates hindering their work. The security clearance process necessarily limits the available pool of special advocates, and the time taken for advocates to familiarise themselves with complex cases is considered to lengthen proceedings.
5.32The Justice and Security Act 2013 was introduced at a time of great public interest as to the extent to which the Government of the United Kingdom had been implicated in alleged torture and extraordinary rendition of individuals suspected of links with terrorist networks. It followed a series of high-profile cases where the Government was forced to settle for millions of pounds outside of court. For example, in 2010, the Court of Appeal ordered publication of national security information that showed that the Government had known of torture being carried out at the Guantanamo Bay facilities against British citizen Binyam Mohamed. Cases such as this provided the impetus for the Act but also contributed to a climate of distrust at the time it was adopted.
5.33The experience in the United Kingdom illustrates how difficult it can be for a government to protect its citizens, fulfil its international obligations and at the same time maintain human rights standards. Examining the political, social and legal context in which the Justice and Security Act 2013 was introduced, also provides insight into why the Act has proven unpopular, which can in turn help inform the New Zealand experience if a special advocate procedure akin to that in the United Kingdom is adopted here.
5.34In the first year after the Justice and Security Act 2013 was introduced the Government applied for CMPs five times, three of which were granted. The fact that the Act is often invoked in the context of civil claims for damages arising out of alleged torture and practices of extraordinary rendition with complicity by the United Kingdom Government further promotes negative associations.
5.35Attempts by the courts to mitigate public concern over the extent to which CMPs undermine principles of open justice have only led to increased criticism. For example, in 2014, the Court of Appeal overturned an attempt by the Crown Prosecution Service to try Crown v AB and CD (later renamed Guardian News and Media Ltd v Incedal) in secret, but the measures imposed by the Court led in turn to criticism by NGOs, MPs and media. The Court of Appeal determined that the opening statements and final verdicts were to be made public and that “a few accredited journalists” were able to follow the proceedings and report after legal arguments were completed, with any notes taken by the reporters to be stored at the Court. The Guardian newspaper made the argument that such measures of closing procedures and excluding the press were inconsistent with the rule of law and principles of democratic accountability.
5.36The use of so-called secret evidence has tended to occur in trials where the allegations are intricately caught up in wider societal debates relating to human rights, civil liberties, national defence and even the machinations of domestic politics. This further muddies the waters, making an objective assessment of the 2013 Justice and Security Act’s utility in terms of facilitating the use of national security information in court proceedings difficult.
5.37Thus even where a well-developed special advocate procedure has been adopted, there are ongoing areas of concern that can lead to public criticism. The experience in the United Kingdom illustrates that, despite allowing national security information to be heard in court, there are lingering concerns that special advocates do not necessarily guarantee the maintenance of natural justice principles.
5.38Under the National Security Information (Criminal and Civil Proceedings) Act 2004, the Attorney-General can issue a non-disclosure certificate on the basis that disclosure of the information will be prejudicial to national security. The prosecution or defence must themselves alert the Attorney-General if they are aware of that potential.
5.39Where national security information is involved, the Attorney-General may give each potential discloser of the information in the proceeding any of:
(a) a copy of the document with the information deleted; or
(b) a copy of the document with the information deleted and a summary of the information attached to the document; or
(c) a copy of the document with the information deleted and a statement of facts that the information would or would be likely to prove attached to the document.
5.40Where any of those copies are distributed the Attorney-General will also issue a certificate that describes the information and states that the potential discloser must not, except in permitted circumstances, disclose the information - they may only disclose the copy, or the copy and the statement or summary. Alternatively the Attorney-General on receipt of a notice may issue a certificate that describes the information and states that the potential discloser must not, except in permitted circumstances, disclose the information.
5.41Similar options are available to the Attorney-General where the relevant information is not in the form of a document. In any case, the Attorney-General may decide not to issue a certificate. The Attorney-General’s certificate and its conditions are, however, in effect only an interim measure. Where the Attorney-General issues a certificate, the court must hold a hearing to decide which of a number of orders should be made. The court can order that the information, regardless of its form, may or may not be disclosed in the proceeding or, where the information is in the form of a document, that a copy of the document may be disclosed with the information deleted, with or without a summary of the information attached, or may be disclosed with a statement attached summarising facts that the information would tend to prove.
5.42In deciding which order to make, the court must consider a number of factors including whether, having regard to the Attorney-General’s certificate, there would be a risk of prejudice to national security if the information were disclosed and whether any order would have a “substantial adverse effect” on the defendant’s right to receive a fair hearing, including in particular on the conduct of his or her defence.
5.43Any risk to national security must be given the “greatest weight” in the court’s consideration. The hearing must be closed, and if the court considers that there is a risk of disclosure of the information that is the subject of the hearing (to the defendant or any legal representative of the defendant who does not have an appropriate security clearance) the court may order that that person (or persons) is not entitled to be present at those times. The defendant has a right to be heard regarding the question of non-disclosure. Defence lawyers can apply for security clearance under the Act. Without it, they will not be allowed to view all the evidence.
5.44Under the statutory regime, although the court must take into account any adverse effects on the defendant’s right to a fair hearing in a criminal trial, there is a clear burden on courts to “give greatest weight” in its considerations as to whether to allow disclosure to “whether having regard to the Attorney-General’s certificate there would be a risk to national security” if the relevant information was disclosed.
5.45The United Kingdom and Australia have enacted legislation that attempts to grapple with the use of national security information in civil proceedings. However, the procedures they have enacted are quite different. As is evident from the experience in the United Kingdom, the particular context in which legislation is introduced can have a significant impact on the way in which a statutory scheme is developed and perceived.
5.46We have noted the different approaches adopted in the United Kingdom and Australia but have not at this time conducted a detailed analysis of the way in which the provisions operate. At this stage of the review, we are interested in views the public might have on whether an approach similar to that adopted in the United Kingdom or Australia might be appropriate in the New Zealand context.