Introduction
Closed material proceedings (CMPs) present a unique challenge to the fundamental principle of open justice. These proceedings, often employed in cases involving national security, permit the government to withhold sensitive information from the accused individual. To mitigate the basic unfairness this creates, the role of the special advocate (SA) has emerged. SAs are independent barristers appointed by the court to represent the interests of the accused in closed sessions where the accused themselves are excluded. This system attempts to balance the competing interests of national security and the right to a fair trial, enshrined in Article 6 of the European Convention on Human Rights. Key requirements for SAs include maintaining strict confidentiality regarding closed material, acting independently of both the court and the accused, and diligently challenging the government's case for withholding information.
The Legal Framework Governing Special Advocates
The legislative basis for CMPs and the use of SAs can be found in statutes such as the Justice and Security Act 2013 in the United Kingdom. This legislation outlines the circumstances under which CMPs can be authorized and the procedures governing the appointment and role of SAs. It sets out the criteria for determining when information can be withheld on national security grounds and the process for challenging such decisions. Case law, such as Bank Mellat v HM Treasury (No. 2) [2013] UKSC 39, has further shaped the legal field, providing important guidance on the scope and limits of CMPs and the duties of SAs.
Challenges and Criticisms of the Special Advocate System
Despite its aim to ensure fairness, the SA system faces significant criticism. A primary concern is the basic limitation on the SA's ability to effectively represent the accused without being able to fully communicate with them about the closed material. This raises questions about the extent to which SAs can truly understand and advance the accused's interests. Further, the process of appointing SAs has been subject to scrutiny, with concerns about potential bias and lack of transparency. The reliance on security-cleared lawyers raises questions about the potential pool of candidates and whether it adequately reflects the diversity of the legal profession.
The Role of the Special Advocate in Protecting Fundamental Rights
The SA plays a critical role in upholding fundamental rights within the restrictive environment of CMPs. They act as a safeguard against potential abuses of process by the government and ensure that the closed material is rigorously scrutinized. SAs are tasked with challenging the necessity and proportionality of withholding information, advocating for disclosure wherever possible, and testing the evidence presented by the government. Their function is not merely to observe the proceedings but to actively participate in the closed sessions, making submissions and raising legal arguments on behalf of the accused.
Ethical Considerations for Special Advocates
The role of the SA presents unique ethical dilemmas. The duty of confidentiality prevents SAs from discussing closed material with the accused, creating a tension between their obligation to their client and their duty to the court. Furthermore, SAs must handle the complex ethical terrain of representing someone they cannot fully communicate with, balancing their professional responsibility with the limitations imposed by the CMP process. Guidance from professional bodies, such as the Bar Council, provides a framework for handling these ethical complexities.
International Approaches to Closed Material Proceedings
The use of CMPs and similar procedures is not unique to the UK. Other jurisdictions, including Canada and Australia, have adopted variations of this approach to address national security concerns in legal proceedings. Comparing these different models provides valuable observations into the challenges and potential solutions for balancing national security and fair trial rights. Examining international best practices can inform ongoing efforts to refine and improve the effectiveness of the SA system.
Conclusion
The use of special advocates in closed material proceedings represents an attempt to reconcile the seemingly conflicting demands of national security and the right to a fair trial. While the SA system provides an essential safeguard against potential abuses of process, it also faces basic limitations and challenges. The inability of SAs to fully communicate with their clients, the potential for bias in the appointment process, and the ethical dilemmas faced by SAs are all areas requiring ongoing scrutiny and possible reform. By examining the legal framework, practical challenges, and ethical considerations surrounding the role of SAs, as well as drawing upon international approaches, we can work to ensure that this system effectively balances the competing interests at stake and upholds the fundamental principles of justice. Case law, such as A v B [2009] UKHL 1, continues to shape the legal field, providing further context for the complexities of this issue. Further research and analysis are important to ensuring that the SA system continues to develop and respond to the ever-increasing challenges posed by national security litigation.