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NEWS

Secret Hearings and the Right to Information

editor - November 5, 2015 - LEAP, legal experts advisory panel, right to information

'Secret Hearings', or 'closed material procedures' (CMPs) are often used in order to protect interests of national security, though critics argue that this flouts principles of open justice that are fundamental to the right to a fair trial. However, even after a new ECtHR ruling permitting the use of secret hearings in certain circumstances, it is not clear to what extent national security concerns can outweigh an individual's right to information. 
Our Campaigns and Communications Intern, Eleanor McConnell, speaks about the latest attempts to balance the rights of individuals with public safety concerns in the UK and how this might affect the right to a fair trial. 

European Court of Human Rights European Court of Human Rights
Last month saw an interesting ruling from the European Court of Human Rights (ECtHR) that affects the meaning of a ‘fair trial’. The Court  ruled that hearings to determine whether suspects should be held without charge during anti-terror  investigations may be legally held in secret.
The case (Sher and Others v. UK) was brought to the ECtHR by three Pakistani students who were detained in the UK in April, 2009 following a series of anti-terror raids. After two weeks, they were released without charge and have since returned to Pakistan. The students argued that they had been denied an open process, with some evidence in favour of their continued detention being withheld, and one hearing being held for a short time, in closed session. The ECtHR, however, ruled that closed sessions are permissible when issuing arrest warrants on the grounds of national security.
While this ruling looked at the circumstances of a particular case and does not argue that secret hearings are justified in all cases, it does set out limitations on what the right to information guarantees in criminal proceedings. Fair Trials, in coordination with our Legal Experts Advisory Panel (LEAP), have done a lot of work centred around this right, as a part of our ongoing work in introducing the new EU Directive, and the training to ensure its full use and implementation. Directive 2012/13/EU explicitly details the right to information in criminal proceedings, and emphasises the suspect’s right to be informed of the charges they are accused of and access to case materials.
In the case of Sher and Others v. UK, the ECtHR ruled that no materials had been unnecessarily withheld from the defendants, and that the judge had reasonable grounds to believe that further detention was necessary. The ruling therefore found that the students’ detentions and hearings were lawful and did not violate their right to a fair trial. The case itself, however, is important because it has set a precedent in which national security concerns can ‘trump’ the right to information in certain circumstances.
However, it is still not clear in exactly which circumstances this limitation applies, as we can see in the case of Wang Yam. Yam is a Chinese dissident convicted in 2009 of murder and sentenced to life imprisonment. The trial judge in the case made an order that excluded the press and public from parts of the hearing ‘in the interests of national security and for the protection of the identity of a witness or other person’. Subsequently, Wang has appealed to the ECtHR, arguing that the prevention of public reporting of his defence breached his right to a fair trial. The British government have stated that the Wang’s defence is too sensitive and potentially damaging to national security to be shown to the ECtHR, let alone the press, and are therefore arguing that he should be banned from taking his case to Strasbourg.
This poses the question of whether or not national security concerns can allow evidence to remain secret, even when the lack of disclosure might lead to an unfair trial. The decision in the UK is currently in the hands of the British Supreme Court, who must decide whether or not they have the power to prevent Strasbourg from seeing the evidence it has requested. Given that the ECtHR has heard secret and confidential evidence in the past, and that the evidence concerned has already been heard by two juries, a total ban on the hearing of secret evidence in Wang Yam’s case seems disproportionate.
These cases are of course very different, but both raise fundamental questions about how the right to a fair trial should be balanced against the need to protect national security. The right of the defendant to information; and the need for public scrutiny of judicial proceedings are integral aspects of a fair trial. However, when detailing with sensitive information, governments and courts must continue to weigh the need to curtail these rights on a case by case basis, rather than using a blanket rule.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on 020 7822 2370 or 07950 849 851.

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