One of the most eagerly awaited Supreme Court decisions of the year so far involves two joined cases which were heard by a nine judge bench over four days beginning on 24 January 2011.  Judgment is expected imminently. The joined cases concern what has become a recurring theme of Supreme Court cases: the government’s desire to litigate issues by using secret evidence and closed procedures.

The subject matter of two cases is different, but similar principles are engaged in both. The first case, Al Rawi, involves claims against UK government agencies for complicity in the detention, rendition and mistreatment of the claimants. The government asserts that it has an implied right to utilise special advocates and a secret evidence procedure, if it needs to rely on sensitive material to defend the claims. The government also wishes the court to be able to give a secret judgment that will be withheld from the claimants themselves. Such steps – permissible, but highly criticised, in the context of control orders –  has never been used in ordinary civil claims before.

The second case, Tariq v Home Office is an employment tribunal claim brought by a former immigration officer. Again the government wishes to defend his claim by using a closed hearing from which the he and his lawyers will be excluded. However, the secret evidence procedure is permitted in employment tribunals by Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. Mr Tariq challenges the interpretation of those regulations. He also asserts that the use of government appointed special advocates in a claim against the government, is a breach of his right to a fair trial; and that if a secret evidence procedure is used he is entitled, at least, to a gist of the Home Office’s case against him.

The same constitution of the Court of Appeal – Lord Neuberger of Abbotsbury MR, Maurice Kay LJ and Sullivan LJ – heard both cases a few weeks apart, and gave judgment in both on 4 May 2010.

In Al Rawi the claimants won ([2010] EWCA Civ 482). The Court of Appeal did not recognise any implied power to hold a closed hearing in ordinary civil cases. But in Tariq the Court of Appeal approved the use of a closed hearing because the statutory regulations permitted it ([2010] EWCA Civ 462). The Court of Appeal disagreed with Mr Tariq’s assertion that the use of government-appointed special advocates was in breach of Article 6; but agreed with his submission that he was at least entitled to a gist of the case against him.

Beneath those nuanced decisions, the Court of Appeal reaffirmed some fundamental principles about the importance of persons knowing the case they have to meet. In Al Rawi, Lord Neuberger MR giving judgment for the Court of Appeal in favour of the claimants, began his conclusion in forthright terms:

“…we should say firmly and unambiguously that it is not open to a court in England and Wales, in the absence of statutory power to do so or (arguably) agreement between the parties that the action should proceed on such a basis, to order a closed material procedure in relation to the trial of an ordinary civil claim for damages for tort or breach of statutory duty.” [11]

There were three reasons for his view. First, and most importantly, by acceding to the government’s argument the court would be undermining a critical element of a fair trial:

“…the principle that a litigant should be able to see and hear all the evidence which is seen and heard by a court in determining his case is so fundamental, so embedded in the common law, that, in the absence of parliamentary authority, no judge should override it, at any rate in relation to an ordinary civil claim… a litigant’s right to know the case against him and to know the reasons why he has lost or won is fundamental to the notion of a fair trial.”

Second, the government’s desire to serve both an “open” and a “closed” defence was incompatible with a proper interpretation of the Civil Procedure Rules (CPR). CPR 16.5, requires defendants to state which allegations they admit and deny; their reasons for doing so: and their alternative case (if any). It is difficult to interpret CPR 16.5 as permitting the government to hide their true defence from the claimants and only disclose it secretly to the court.

Third, the government’s suggestion that there were significant practical benefits in allowing part of the trial to be conducted in secret, was illusory. In order for the trial judge to assess the weight of those practical benefits he would have to go through a careful process of examining the relevant documents that the government wished to keep secret. He would also have to determine whether its contention was well founded with regard to all such documents, and also whether any form of closed hearing was truly necessary. This would add to the time and expense of the proceedings, not reduce them.

Before the Supreme Court, the government asserted that maintaining the current position would mean that in some claims brought against the state, all the relevant evidence that could be used to defend the claims may not heard. This, they said, may cause an unfair result. The response to this point – as Lord Neuberger pointed out in the Court of Appeal – is that this is not objectionable in itself. There are a number of other rules of evidence that prevent some relevant material being deployed by the parties in ordinary civil litigation. Within the framework of a fair trial and equality of arms, exclusionary rules based on important principles, are something that the parties must live with.

The Supreme Court will also consider whether it is possible to make an exception for particular categories of special case. The Court of Appeal specifically declined to do so:

Quite apart from the fact that the issue is one of principle, it is a melancholy truth that a procedure or approach which is sanctioned by a court expressly on the basis that it is applicable only in exceptional circumstances nonetheless often becomes common practice.” [69]

If the Court of Appeal is right, and it would be unacceptable for a secret procedure to be implied into ordinary civil claims, the Supreme Court will also have to consider whether it would be acceptable if legislation authorises such a procedure. It is, for example, permissible in the context of control orders under the Prevention of Terrorism Act 2005. In the case of Tariq the Supreme Court will need to consider whether the authority of statutory regulations, are adequate to permit what may otherwise be an affront to principles of open justice.

The distinction between secrecy that Parliament has approved, and that which it has not was made clear in the case of R v Davis ([2008] 1 AC 1128).  That case concerned the practice which had developed in criminal courts of allowing some witnesses to have their identities kept secret. The House of Lords made it clear that it was for Parliament, and not judges, to sanction a departure from well established principles of open justice. The result was speedy legislation that allowed the practice to continue in a more regulated form.

At present, no such statutory authority exists for the use of secret hearings in ordinary civil claims. Lord Neuberger, in Al Rawi, emphasised the danger of judicial erosion of principles of natural justice. He recalled the observations of Lord Shaw of Dunfermline in the case of Scott [1913] AC 417, almost a century ago:

There is no greater danger of usurpation than that which proceeds little by little, under cover of rules of procedure, and at the instance of judges themselves…the policy of the widening area of secrecy is always a serious one, but this is for Parliament, and those to whom the subject has been consigned by Parliament to consider”.

If the Supreme Court upholds the Court of Appeal decisions based on the absence of legislative sanction of closed hearings in ordinary civil cases, the government may respond as it did in R v Davis by simply enacting legislation. But, in this area, that may not be sufficient.

Even a statute explicitly permitting secret hearings in civil cases would still have to withstand scrutiny under the Human Rights Act 1998 and be compatible with the right to a fair trial. That is not something that Lord Shaw would have had to consider. But it may well feature strongly in the forthcoming judgment.