Reported by the UCL SHRP events team
note: video of event coming soon!

On 8 December, the University College London Students Human Rights Programme (UCLSHRP), the London Guantánamo Campaign (LGC) and Peace and Justice in East London (PJEL) held a question and answer session on the national security paradigm with barristers Danny Friedman and Matthew Ryder and solicitor Gareth Peirce, all of whom have direct experience of working on cases where national security provides an excuse to withhold evidence, either through the use of public interest immunity (PII) certificates or closed evidence, and deny the right to a fair trial.

Attended by around 50 people, important questions were put to the panel by those attending as well as by the chair. Through the discussion on various issues such as the secrecy surrounding national security deportation cases, the Baha Moussa inquiry and the civil compensation claim brought by former Guantánamo prisoners against the government for its collusion in their torture, important issues were raised. Gareth Peirce stated that fundamental legal principles were under attack; although it is easy to look at the cases as a series of victories and defeats, they need to be considered as a developing pattern. For example, the demise of secret evidence hailed following the 1 December judgment last week evaporated in SIAC this week; while the judgment declared that bail cannot be revoked or denied based on secret evidence, SIAC decided that the secret evidence did not matter as U poses a “threat to national security” in any case.

There was consensus among the panellists that national security is little more than a label and a ruse for the government to act as it wishes. Evidence that cannot be disclosed in a trial is essentially irrelevant. However, there is concern that secret evidence is being rolled out into other areas, such as inquests. Matthew Ryder described the experience of a barrister presenting open evidence at SIAC as an “astonishing [and] bizarre experience”, as the normal rules do not apply. Special advocated were cited as a part of the problem at such trials as while they are there to present the case of the appellant (SIAC is an appeals court) in closed session, once they have access to the closed evidence, they can no longer communicate with the appellant or their lawyers. He described this process as “deficient” as once the hearing goes into closed session, the special advocate, then representing the appellant, does not know whether the appellant could provide a defence in relation to that evidence and of course the appellant has no idea of what that evidence is. While the lawyers representing their clients in SIAC feel they do a good job defending them, the real case is presented in closed session which they have no access to. The closed process is difficult for solicitors and barristers defending the open case to deal with but is even harder for the client to deal with.

More frustratingly for all involved is that while “victories” may be won, there are nearly always setbacks later on. This makes them question whether their work does anyone any good. Danny Friedman stated that since, as stated by Lord Justice Sedley, SIAC is “not a court”, no judging or advocating actually takes place within it. One judge and three special advocates have resigned from SIAC. Mrs Peirce stated that this system makes a “mockery of the justice system”. Participation in this system is wrong and those involved in it should question their role in it. The system created by courts such as SIAC needs to be challenged and brought down. There was all round criticism of the use of national security and secret evidence to move the traditional English adversarial court system towards an “intelligence gathering” process, one based on assessments and not evidence. Gareth Pierce stated that “national security” in these cases was evidence enough. National security relates to the relationship of the UK with other states. Its use to legitimise secret evidence lowers the investigative standard of cases and creates laziness within the legal process.

Asked what ordinary people can do about this issue and help roll back the use of secret evidence, Mrs Peirce stated that the public should take the opportunity presented by the upcoming election to get their MPs and election candidates to make pledges to speak out and seek the repeal of the laws that have led to this diresituation. Public support for those affected by these issues is also very
important.