Justice and Security Bill [HL]

Lord Marks of Henley-on-Thames Excerpts

Tuesday 17th July 2012 Lords Chamber

[Lord Thomas of Gresford]

My Lords, I raised in my Second Reading speech the question of a separate judge for the determination of disclosure issues, in particular PII applications and Section 6 proceedings: that is, a judge who is separate and distinct from the trial judge. The reason I believe this to be a necessary safeguard in civil proceedings is because the trial judge in civil proceedings is the judge of fact. That is quite distinct from criminal proceedings in the Crown Court, where it is the jury that makes the decision on what has happened.

It was the procedure instituted in the Diplock criminal courts in Northern Ireland, where the judge, unusually, sat alone without a jury. He decided the facts and returned the verdict. The purpose of this practice was to build public confidence in the criminal trial process in the absence of a jury. The importance of public confidence in the system has been emphasised today, most particularly by my noble friend Lady Williams, but also by others who have referred to the need to keep public confidence in the judicial system.

This proposal has been the subject of discussion with the Minister, and with the Secretary of State, for which I am grateful, and I have been provided with a note which sets out the Ministry of Justice’s views. The first reason for its lack of support for my suggestion is that,

“it is better from the point of view of the administration of justice and judicial case management that the judge trying the case—who will have a direct interest in ensuring that he or she oversees a fair trial process—should be the judge who determines whether a CMP should be allowed”.

This totally ignores the fact that, in ordinary civil litigation, preliminary issues are the province of a Master of the Queen’s Bench, or a registrar. He deals with strike-out applications, case management, and in particular, with disclosure under Part 31 of the rules of the Supreme Court. Applications seeking further disclosure or contesting claims for disclosure are tried by the Master subject to appeal, not necessarily to the trial judge, but to another High Court judge.

In civil proceedings, unlike criminal proceedings, a two-tier system is in existence at the moment. Anything that is ruled out by the Master on the basis that it should not be disclosed or is irrelevant or inadmissible is not put before the trial judge. The trial judge does not become involved in these proceedings until the case is ready for trial and the disclosure issues are already dealt with.

Another aspect of the Master’s work is to deal with, as I said, strike-out applications, where allegations in the pleadings which are irrelevant or scandalous are struck out and never come before the trial judge at all. Clause 9 says that subject to Clauses 7, 8 and 10, the normal rules of court continue to apply, in relation to disclosure. That seems to mean that the Master would govern all applications in the case relating to material which is not the subject of a Section 6 application but, when it comes to sensitive material, those applications are dealt with by the trial judge. I do not believe that the Ministry of Justice has fully taken on board the standard everyday practice in civil proceedings, whether in London or across the country, where preliminary issues are not dealt with by the trial judge.

The second reason given by the Ministry of Justice for rejecting my suggestion is that relevant, but very sensitive, evidence, which would fall to be excluded otherwise from the proceedings under a public interest immunity application, is considered by the trial judge. I draw attention straight away to the difference between “material”, which is the word used throughout the Bill—Section 6 applications relate to material—and evidence, which is what is admissible and what is relevant and what the judge may take into account in coming to his decision.

The ministry says that:

“The issue is about allowing the judge to know the full facts, even in circumstances where they cannot be fully shared with the claimant. So there will usually be no question of the judge’s mind being swayed by evidence which ought not to be taken into account at all. It is about allowing the judge to take all the evidence into account”.

Of course, if all the material is put before the judge—not evidence, but material—he still has to exclude from his mind irrelevant and inadmissible material. Presumably that is multiple hearsay, inexpert opinion, the product of intercept and so on.

On intercept, I want to ask the Minister a very specific question. Under the provisions of this Bill on a Section 6 application, the judge is permitted to look at intercept material. Is he, as the trial judge, permitted to consider intercept evidence for the purposes of his decision on the issues between the parties on material that would be inadmissible in open proceedings? The Bill as drafted suggests that he may take such material into account in making a declaration under Clause 6 that a CMP application may be made, but nothing is said in the following clauses about whether he may take inadmissible evidence, like intercept, into account in formulating his judgment.

Indeed, there is a huge hole in this Bill. It deals with a Section 6 application and how you can make it; it deals with how the judge determines that application and what rules are to be applied; and it deals with how he is required to withhold material the disclosure of which he considers would be damaging to the interests of national security; but having made all those decisions what then? One would have expected a clause saying something to the effect that the judge in open court may take into account the material that he has considered in the Section 6 application. One would have expected at that point that the Bill would not be silent about what happens afterwards and to what degree he can take into account what he has seen but which he cannot disclose. If evidence is inadmissible in open proceedings, how can it be inadmissible in closed proceedings? The inherent unfairness of Section 6 applications is doubly compounded.

That brings me to the Government’s third point. Again, I quote:

“It is normal for judges at all levels to decide whether evidence is admissible and, if it is not, to put it out of their minds when reaching a judgment”.

That seems to confirm that the judge is to take into account only admissible evidence in deciding the issue. Again, I ask: does that apply to the intercept evidence that he is permitted to see in a Section 6 application? Does he put intercept out of his mind?

The fourth point is:

“This is true even when the judge is also the decision maker on the facts—for example in criminal cases in the magistrates’ court, where there is no jury; and in cases in the civil courts where PII claims are made”.

We are most certainly not dealing with criminal proceedings in the magistrates’ court in this Bill. I would be grateful if the Minister would indicate how often PII hearings do take place in such magistrates’ courts, where the magistrates carry out the Wiley test of weighing the interests of secrecy against the interests of justice. I have never heard of it happening. It may do, but I have never heard of PII applications determined by magistrates. In the civil courts, of course, I repeat, the judge discards material which he rules should not be disclosed as inadmissible —that is to say, it does not enter into the process of his determination of the issues in the case. He must sift out, from the material put to him in the Section 6 application, what is to be discarded because it is inadmissible and take into account only relevant evidence.

The final substantive point made by the Ministry of Justice is that a separate judge would have to review disclosure decisions as the trial progresses. Perhaps he would, but he would be fully informed of the state of the proceedings and of the issue which had arisen in the open proceedings, no doubt by the state’s representative, who would discuss the position with the claimant’s special advocate before such a hearing. There are ways of getting round what goes on in the open hearing which may be required to be reported back to the disclosure judge.

My point is that the designation of a disclosure judge by the Lord Chief Justice, although I put it might be more appropriate to say the Lord Chancellor, or, since it is civil proceedings, the Master of the Rolls would ensure that there is a cadre of judges, security cleared, who would develop expertise in this type of case. They would quickly be adept at redaction, gisting, disclosure to a security ring or whatever way they can deal with evidence or parts of evidence which might be disclosed to the parties. A disclosure judge could, for example, permit the special advocate to ask the claimant specific questions by way of taking instructions and could control the manner in which that would happen. If the disclosure judge decided there was a limited area of the evidence that justice demanded that the trial judge, but not the parties, should see, I suppose that in extremis that could be done. There could be a tiny residue of material which cannot be disclosed by gisting or in any other way to the parties in the open proceedings. Otherwise, however, the trial judge would deal with the issues between the parties only on the admissible and relevant evidence which the disclosure judge had decided should be open to them all.

The Government have suggested that the rationale of my amendment is to avoid the contamination of the judge’s mind in relation to material which he has seen but which is not shared with the parties. The use of the pejorative word “contamination” clouds the issue; the intention of the state in applying for Section 6 proceedings is exactly to influence prejudice or, if you like, contaminate the judge’s mind in coming to his judgment. I am concerned to ensure that justice is seen to be done in an open and transparent way that will command the confidence of the public and continued respect for the rule of law. I beg to move.

[Lord Marks of Henley-on-Thames]

My Lords, I added my name to the amendment put down by my noble friend Lord Thomas of Gresford. This debate is informed by the far-reaching discussion that we had last Wednesday on the relationship between PII and CMP. I suggest that in that debate there emerged a consensus around a series of principles which can be distilled as follows.

First, the use of CMP should always be a last resort given the inherent injustice in the trial judge seeing evidence that is withheld from one or more of the parties. Secondly, there should be substantial flexibility in considering how far a just determination of the issues could be achieved by relying on the PII procedure where the exclusion of security-sensitive material under PII would not make determination of the issues impossible. Thirdly, the court should always, as far as possible, make use of gisting, redaction and other ways of protecting security-sensitive material rather than relying on CMP. Fourthly, before resorting to CMP the court should always be satisfied that the public interest lies in having closed proceedings rather than in letting the case go without a determination on the merits at all. Finally, in any CMP, the use of closed material should be kept to the minimum.