Timeline: Justice and Security Green Paper

“There comes a point where the line must be drawn between procedural choices which are regulatory only and procedural choices that affect the very substance of the notion of a fair trial.” (Lord Hope – Supreme Court judgment 13 July 2011)

18 November 2009: The High Court takes a landmark decision to allow in principle, the introduction of secret evidence in civil trials, including that which details the government’s role in the illegal detention and torture of British citizens. The decision comes as part of a claim initiated by six men including Binyam Mohamed, Bisher Al Rawi and others against the secret services and the government for their collusion in their torture.

Under the proposed new system, claimants are to be prevented from knowing evidence against them, while journalists and members of the public will be barred from witnessing proceedings in court. Crucially, unlike the public interest immunity (PII) system, the party withholding evidence from the other side will still be allowed to rely on the ‘secret evidence’ in proving their case. Claimants on the other hand won’t be able to see the secret evidence, respond to it or cross-examine witnesses on it.

4 May 2010: The Court of Appeal overturns the previous ruling “firmly and unambiguously” rejecting the government’s argument that it is open to a Court, in the absence of statutory power, to order a “closed material procedure” in relation to the trial of an ordinary civil claim.

Lord Neuberger (Master of the Rolls), Lord Justice Maurice Kay and Lord Justice Sullivan unanimously agree with the Claimants that such a procedure would undermine some of the most fundamental principles of open and natural justice referring to the “cardinal requirement that the trial process must be fair, and must be seen to be fair… which under the common law means that a trial is conducted on the basis that each party and his lawyer, sees and hears all the evidence and all the argument seen and heard by the Court.” Reference is also made to the fundamental principle of English law that a party to litigation should know the reasons why he won or lost.

13 July 2011: The Supreme Court unanimously dismisses the government’s further appeal stating that there is no power within common law which supports the principle that the court has power to order a closed material procedure without the relevant statutory authority. Given this, the Court further finds that ‘It is not for the courts to extend something as controversial as the closed material procedure beyond the boundaries which Parliament has chosen to draw for its use. If this is to be done at all, it is better done by Parliament’.

19 October 2011: The government publishes a Green Paper outlining its proposals for major reforms to how government and intelligence agents supply evidence to British courts.

6 January 2012: The public consultation on the Green Paper closes.