Secret Justice

How should the secret evidence gathered by security agencies be handled by New Zealand courts?
by Gordon Campbell

While a huge amount of attention have been paid to Edward Snowden’s revelations about the systematic gathering of secret information, precious little has been given to how the courts might handle that evidence, once push comes to shove. Yet we need to know how willing and able the courts are to cope with the handling of secret evidence, and how these courtroom procedures may well change our cherished traditions of fairness, and open justice.

For months, the Law Commission has been conducting a review of our courtroom procedures with respect to secret evidence. It has issued a discussion paper summarizing the ways in which various statutes currently – and differently – authorise and manage these kind of “closed” proceedings where secret evidence is used and hidden ( in whole or in part) from the individual concerned. The Law Commission’s declared aim is to standardise these procedures. It also aims to strike the best achievable possible balance between the need to protect national security, while offering mechanisms that [hopefully] will still go some way to meeting (a) the individual’s right to know the evidence for the allegations being made against them, and (b) their ability to test that evidence fully in open court.

Elsewhere in the world, similar attempts have been made, and they remain controversial. Two main mechanisms tend to be used : the individual concerned is given a summary containing the ‘gist” of the case against them. Then in some cases, a “special advocate” can be appointed by the court to assess the secret evidence, and to challenge it – yet without being able to communicate with his “client” once the secret evidence has been revealed to the special advocate. At best, the special advocate system is a sop to fairness. To its critics – who include a good number of senior QCs and judges here, and in Britain – it is a process that is only as fair as the alleged ‘need’ for secrecy will allow. Arguably, that’s simply not fair enough, given the consequences for the individual concerned.

By and large, the protections afforded to secret evidence – which cannot help but be given added weight by the court, given the extreme lengths being taken to protect it – implicitly assumes that the individual concerned is Osama Bin Laden, or his equivalent. (That excited assumption ending up causing all kinds of grief to Ahmed Zaoui a few years ago.) Far more often, the case will involve an ordinary person coping with English as a second language who is trying to get a passport, or a fair hearing for their claim to asylum. Secrecy can be piled on difficulty, leaving justice a distant glimmer on the judicial horizon.

The Law Commission’s discussion paper is available here.

Professor Geoff McLay is driving the project at the Commission. Werewolf editor Gordon Campbell recently interviewed Professor McLay about the issues involved.

Campbell : National security – and how to determine when it is really under threat –is a notoriously difficult thing to define. As a law professor, does it bother you that a concept that can carry so much weight in court proceedings should be so elusive?

McLay : Just as a lawyer or as a citizen, it does. One of the most difficult issues with this review is the scope which you give to a concept like national security. Do you try to define it, or do you leave it to courts to define it? Do you leave it to the government to define it? That’s the key question. The problem is: if you try to define it in statute do you exclude something that comes along in the next case ? Do you create a problem whereby judges try to expand the definition to deal with the realities of the current case? Or do you leave it more open textured, and rely on the discretion of the judge and the executive to decide what is national security and what is not…

And in the discussion paper, you give three options. Namely, that the threat assessment decisions be left (a) to the Crown alone (b) to the courts alone, or (c) to a combo whereby the court decides, but where the Crown can over-ride the court’s decision whenever it chooses to do so. Do you have a preference?

(Laughs). We’re in the process of trying to figure out whether we have a preference. The Executive deciding is attractive for people who obviously think the Executive knows best, or that the Executive has a particular knowledge base on which it can draw its conclusions. It represents all of us. Most people I think would probably plump for something around the second option: an independent arbitrator, with the Crown making the claim that something is [about] national security and with the claim being put to an independent person like a judge to determine that the claim [is valid]. That’s the situation for example, that probably exists in the United Kingdom at the moment – and the sorts of procedures that exist with respect to public immunity claims.

Right. The drawback with the third option is that it makes something of a pantomime out of the court’s discretion. In that the court would have discretion, but only so long as that was OK with the Crown.

Yes. And you could argue that would be constitutionally inappropriate, in that the court’s decision should be final. Courts make legal decisions, not advisory decisions. But the advantage with that option is that there’s a degree of ultimate assurance – such that if the courts make a mistake through the appellate process, there’s a way we can over-ride it in the end [and] be able for example, to give ultimate assurance to a third party giving you information. There’d be an ability to say : in no circumstances will this information be made available.

To which, most people would say – whaat ? You mean if Washington doesn’t like this being publicly discussed, they should be able to get their friends in Wellington to over-ride a New Zealand court’s decision? That doesn’t sound good.

And the answer to that is : in the jurisdiction from which we drew that suggestion (Canada) this isn’t a provision which is used. Its more of a failsafe. One would expect in fact, that this would not be used. I wouldn’t use the criticism perhaps, that you’ve made. But I would say that is definitely a drawback – that if you have a system whereby the courts normally determine questions of law, then its strange that in this area they aren’t making the final determination, or the final decision. So I suspect that many lawyers in particular would favour option two. People involved in the Executive would favour option one. Perhaps one of the real points in our review is to try and figure out a situation where there isn’t seen to be such a conflict between the Executive and the courts in making a decision. It [involves] trying to build a sense that the courts will be able to deal with the information appropriately- and make the right determinations – while being sensitive to what the Executive needs in terms of confidentiality, and security..

OK, put this another way. What mechanisms do the courts currently have to prevent a systematic over-claiming by the Crown that national security is at risk?

At the moment, the general court procedure is one called the public interest immunity certificate – which is the one issued under section 27 of the Crown Proceedings Act whereby the Prime Minister can determine that certain information that would otherwise be available to the court is not to be made available, on the grounds of national security, the defence of New Zealand, or international relations. At the moment, New Zealand’s case law is somewhat unsettled. In the most recent case, in the old Court of Appeal – the case of Choudry – the first time the courts looked at it, the courts rejected the certificate, saying it needed a greater degree of specificity. They [the Crown] came back a second time, and Justice Thomas was the only judge who said that still wasn’t enough, and that he probably wanted to have a look at the [secret] material. Typically that’s the state of New Zealand law at the moment – in that we have these public interest certificates, but we haven’t got a higher-powered authority that says judges ought to look at the material, in order to make that decision for themselves.

And that [higher authority] is what you guys are trying to see if you can construct?

Yes, there’s two ways of looking at our project. One [way] is the attempt by the government to be able to use information in a closed proceeding. The other way to look at it is from the other side, and say : if we can create a kind of proceeding whereby the government can be assured that information will not get out inappropriately, then perhaps the ability to claim public interest immunity might be diminished.

Right. But this is still not addressing the potential for systematic over-claiming. Some people would say: full and open disclosure in court doesn’t seem to hinder the Police from carrying our further investigations in other cases. Why should disclosure be such an intolerable burden for security agencies ?

First of all, I don’t think court review deals with the classification of material. That’s not the intention.

It has to be a consideration though, doesn’t it? As you say at one point in the review, systematic over-claiming [of security risks] is an occupational hazard in this area.

Well, its probably prudent for the government to actually over-claim, rather than under-claim. And then there should be a process by which those over-claimings are filtered out. Part of that I suspect, is in other peoples’ reviews. [ie the upcoming Cullen /Reddy review of the security agencies].

But in our review, what we could say appropriately is that at the moment, the procedure that we currently have deals with blanket claims : blanket certificates, or tailored certificates. But it doesn’t give a process by which the court can contest that, or establish a proper process by which the courts can examine whether the claim is being properly made. So I suppose in that sense, the review deals with a particular, smaller part of the universe of what you would call ‘over-claiming.’

OK. The main protections on offer for the defendant in these “closed proceeding” situations are (a) a summary of the case and its relevant information and (b) the appointment of a security-cleared special advocate who can contest the classified evidence on behalf of the defendant and the court. Now, that summary has to be full enough to enable the defendant to give effective instruction to his legal team, correct ? It can’t be just a set of general assertions?

That’s my understanding, yep.

But here’s the thing. Currently, under the Immigration Act, the Terrorism Suppression Act and the Passports Act, the court has no choice but to accept the summary provided by the Crown. And only under TICSA ( the Telecommunications Intercept Capacity Security Act] may the court possibly reject the summary if it deems it to be inadequate. Is that a situation that the Law Commission feels a need to revisit?

What we would say is that the summary that’s being provided to the individual ought to be something which is contestable by the special advocate, for example. Or it should be contestable by the court. And that’s something we think you could reform in terms of things or processes that might be involved.

So it’s a shortcoming right now, of the current situation?

I think you could see the advantages in a different system. Perhaps with a greater degree of contestability in terns of what might be national security information that qualifies for a special advocate procedure. Then from that, how the summary of facts – the so called ‘ gisting” of the case – gets drawn up.

Yeah, but with regard to the gisting…. if and when a special advocate gets appointed, the Immigration Act explicitly denies them any role in preparing the summary that’s given to the defendant. Isn’t that the case ?

I’d need to check.

I think I’m right on that. It was a rhetorical question. To most lay people, that would seem absurd –

One of the things we think you could change is that you might want to consider what would be the optimal way that you could structure these proceedings. One of the important roles of the special advocate in the United Kingdom is to contest whether information ought to remain in closed proceedings at all. So that’s an important role of the lawyer that’s appointed to act on behalf of the private individual.

Why I’m making a bit of a meal of this is that role of special advocate was created as a sop to fair process. Yet under the Immigration Act at least, they’re expressly excluded from any role in ensuring that what the defendant gets is in fact, a fair summary of the relevant classified evidence. Why would you expressly want to exclude the guy who’s there to ensure fairness, from helping to prepare a gist that’s fair and accurate – especially when it is so central to the case ?

As I said, I think that’s one of the things, in terms of the process, that you might look at. That when you do appoint the special advocate, what that special advocate is doing, what that advocate can compile or help to compile in terms of the gist – but also how we could facilitate that special advocate if possible, being able to communicate back with the client. Because all of these regimes often have a bar on [such communication] without getting further permission from the court or tribunal that’s hearing the case.

That’s good to know. Because at one point in your paper, you recommend the Immigration Act as the possible template, or gold standard, for the other pieces of legislation that authorise closed proceedings. My point was that right now, even the template looks a bit flawed.

I don’t think we were intending that by saying a template, that we would adopt or recommend all the things that the Immigration Act contains. What we were saying is that it contains the most worked out version of all the procedures. The TICSA model for instance, is quite short on what it provides…

Right. Under TICSA it doesn’t look, necessarily, as if the special advocate can even be briefed beforehand by the defendant.

One of the things – if this procedure is to be extended – we’re most worried about of course, is that these procedures should be seen as extraordinary, rather than as normalized procedures. One of the concerns is that if you make it more normal, you can use these special tribunals more often. And if you have them [now] in different areas of the law under different statutory regimes, they should have a degree of commonality. The parts that can be changed should be the same, {with] the best parts of all of them. There is [currently] a bit of a hodge podge of provisions in some areas. And at least the Immigration Act sets out some procedures – you certify the information, and you may have some doubts about who’s doing that certifying under that Act. You might also have some doubts about how the information is gisted, and given to the plaintiff or applicant. You might have some questions about the role of the special advocate. But at least there is a set-out role. In the other statutory regimes, there isn’t much at all.

Are you saying that it’s a bit like Obamacare ? In that at least its on the books in the Immigration Act, and now we can set about improving it?

Hopefully with this we can say well actually, what needs to be done is : if we were to recommend a special advocate, and that kind of procedure more generally – how would you set up that regime ?

Is there any other jurisdiction where special advocates enjoy greater latitude than they currently do in New Zealand ?

The two we’re most aware of are Canada and the United Kingdom. Traditionally, one of the biggest problems is that once the special advocate goes into closed proceedings, how do you enable that special advocate to communicate [with the defendant] and go about their lawyerly job.

Lets separate that out. As I understand the situation in Canada, it seems like there’s a capacity for the special advocate to call and cross-examine witnesses, and to initiate submissions to the presiding judge. Those sort of powers aren’t guaranteed in New Zealand, are they?

Well again, that gets back to tidying up what you think the role of the special advocate is. My understanding is – what would be part of being a special advocate would be someone who can represent the interests of the individual. That’s what’s part of clearing up what they can do, and what they can’t do. The biggest difficulty in all these jurisdictions is that bar on communicating once its in closed proceedings, not what you can do in the courtroom. What can you do about talking back to the client and the client’s lawyers [after you’ve seen the classified evidence] ? What can you do in terms of your own investigations ? And the worry is that if you can talk to the client or to the lawyer directly – are you going to somehow disclose something that ought not to be disclosed ? Almost always by mistake, rather than deliberately.

And just to be clear about the concerns on the other side of the fence, if the evidence hinges on an allegation about what happened say, at a mosque on the night of October 23rd, the plaintiff may be the only person able to refute or confirm that evidence. Yet they may be prevented from ever knowing that was the crux of the case against them. Unless the special advocate has an elephant’s memory and – beforehand – has been told everything, and can remember everything, that’s remotely relevant in this guy’s entire life.

Two things about that. Certainly, that does place an enormous burden on the original briefing that the special advocate receives from the client – or the client’s normal lawyer. That’s obviously going to be incredibly important. The other point to make about that is that everybody accepts this is a little bit of a compromise as to what would normally happen : and that there are dangers. And what we’re talking about is procedures that can minimise those dangers, and decrease the sense of unfairness that you’re describing.

Well, lets look at another way that this process deviates from normal practice. Normally people get to choose their own lawyer, and can be in constant communication with them. But in this situation, they’re made to be reliant on someone who is appointed from a limited pool of security cleared lawyers. Doesn’t this mean in effect, that the SIS – which does the security vetting – gets to create the pool of lawyers that it deems suitable to test its own allegations?

Yes. And I think that’s a concern. And I think that’s going to be a difficulty, particularly in a place like New Zealand. The pool of lawyers is always going to be relatively small….The United Kingdom is a much bigger country, and it has a lot more of these cases. One of the advances the UK went through was not having a system by which some-one is appointed by the very government that is trying to expel you from the country, or is otherwise litigating against you. {The aim is] to give a greater sense of choice to the people employing them or working on behalf of their client. Again, one of the advantages in the United Kingdom is that you have this very large and very traditionally independent bar where people are very used to people working on either side of the government/ private person divide. Not that we don’t have [similar] traditions of independence. But here, lawyers have a very small pool [comprising] that independent bar, and special advocates are going to be a very, very small pool indeed. That’s one of the things we’re very worried about : the practicalities of having this kind of regime. How will you have to support it, who would be these lawyers, how would they go about being cleared or approved – and how do we make the message clear that these really are the lawyers for the private party rather for the government.

Well, they’re actually there for the court. But there is a potential for capture, isn’t there – if these proceedings should begin to happen more frequently ? Which would mean that yet another aspect of the adversarial process would be being lost ?

There are different ways of looking at that, I suppose. The other way of looking at it is to say : the more experience you have in doing these cases, the better job you’re likely to do in what is a particularly specialist area….

Right. Like, you will learn what you need to know from the briefings, for instance ?

Yeah, and you get to understand what various intercept information is, or don’t need to ask those same questions. But your basic proposition is right, Gordon – in that any system we create or further expand upon, will have to be very mindful of that practical interrelation – who are these lawyers going to be, how are they going to be funded, how are they going to be supported ? Certainly, those issues have been very important in the United Kingdom…

You’ve talked about this situation not arising very often in the ‘terrorist threat’ scenario. In New Zealand, special advocates were first used in the Ahmed Zaoui case [and later in the Kim Dotcom litigation] and fears were expressed back then about mission creep, in that special advocates would begin to be used in criminal and civil cases as well. Has that evolution begun to occur?

Well, the first thing to say is that there clearly is a number of statutory regimes that either enable them, or work on the presumption they might be employed. That’s certainly true. One of the things we’ve tried to do in the issues paper is to set out how you might stop some of that creep. For example, we’ve said in the issues paper that we see little scope for a special advocate in a substantial criminal hearing. Because inevitably, in New Zealand we think defendants should know the case they’re being convicted upon. So at least we’ve said in that sense we don’t see a role for the creep of special advocates into criminal trials, into substantial criminal trials. Its more difficult to completely exclude them in other kinds of hearings.

Such as refugee tribunals, and passport-related stuff ?

Well, the thing is the case has to be made out for the use of them both generally within a particular regime – this the reason why we need them in a particular regime, and that case might need to be made better [in future] than it might have been in the past. But also, the particular reliance on it should be seen as the exception rather than the rule…and as in the UK and the SIAC process, there should be a potential for argument as to whether the information should not be enclosed, but should go back into open court…

In our reform [paper] we’ve tried to draw a distinction between natural justice – the need to ensure that the individual or applicant is aware of the information that they need or on which decisions are being made about them. That’s one value in our system, and that’s important. Similarly with the one you’ve just mentioned, the open justice value. Also very important, but they kind of fulfill two quite different roles in the legal system, though they’re inter-related.

In the real world though, won’t protecting the security information and its sources always trump the rights of the individual ? I mean, can the Bill of Rights provisions [eg section 25 a, which protects the right to a fair and open trial] have any impact here?

I think this is where it gets to be a bit of a false dichotomy and it’s a problem with the way the current law is set up. There’s natural justice vs national security. I think what we’re trying to do is find a space where you can negotiate that, so that information that relates to national security may in the end may be excluded [from open court] but at least there’s a situation where it can be tested.

Are you saying its not a zero sum game ?

I think everyone agrees some form of national security is important to society. Everyone also agrees that natural justice and open justice are also important. We often see them as being in conflict. The way we sort of conceptualise this review is to try and figure out a space where you can argue about what really needs to be made available.

That’s a fine goal. But to repeat : in practice, won’t one always trump the other ?

The way the system is set up now is ‘winner takes all’ trumping. And we’re trying to create a space where you can have legitimate arguments in a tribunal or in a court where you don’t rely on this complete dichotomy : you must give me everything because that’s my natural justice right versus we must give you nothing because we need to protect national security. I suspect you might be able to negotiate some way in this procedure – to a point where the person gets what they need, without infringing what might need to be protected.

And to lend some substance to that quest – right now, do you think that the balancing act might yet enable the special advocate to communicate with the applicant and their legal team after the special advocate has seen the classified evidence?

That’s one of the things we’re most interested in hearing about –particularly from lawyers. The degree to which that’s possible, and how it would actually work. There are concerns for the lawyers in that they might want a protection – because normally a lawyer would disclose everything to their client – such that there needs to be something in the statute or in the rules of ethics that says ‘ you don’t need to disclose information which in your judgment or the judgment of the court you can’t disclose.’

The risk is that in trying to do this is either you will let things leak when you didn’t mean to, or that you will self-censor to the extent that you end up doing a half job. That’s really hard, and its something we’re keen to hear submissions on to get that calibration right, and see what protections you may need. Everyone we’re talked to about the current procedure says that its very clunky – you have to essentially go back, and ask all your questions through the tribunal. Its clunky, and it interferes with every way in which barristers are normally expected to work.

One other thing that bothers me is that we haven’t talked at all about the quality of the evidence that may fall under this umbrella. Intelligence traffic is often not of a standard that a court would normally accept. Its often hearsay or from second, third or fourth hand sources, us derived perhaps by torture etc etc. Sure, in that form it can still be useful to intelligence agencies in their work, regardless. But here, the court is extending protection from open adversarial challenge to classified evidence that might well not have made the grade in open court, anyway.

They key thing here is to stop and say – there’s nothing about this project that says sub-standard evidence should be the grounds that people have their rights decided upon.

But how can you tell?

Essentially, the choice we have is how to help judges make the appropriate decisions. So, at the moment, its just them sitting by themselves with various applicants in various procedures. They’re just themselves. You might argue that its more appropriate to at least have a special advocate who is doing a job – maybe imperfect, and not as good a job as would be possible under another regime – but at least, helping and pushing things along…The Inspector-General was very keen in the Zaoui case to appoint a special advocate. That’s a valuable thing for the decision-maker, to have a second person who is openly questioning the material from a particular perspective. .

Perhaps. Yet my understanding is that ultimately the special advocate was not the key factor in the collapse of the Crown case against Zaoui. What proved decisive was the ability of his legal team to develop an alternative and more convincing narrative out of the evidence – such that the Crown eventually threw in the towel. To me, that’s an argument for saying fuller disclosure and open access to secret evidence ultimately serves the interests of justice far better. Far better at least, than pinning all of your hopes on the special advocate.

Its difficult to comment on the Zaoui thing, directly. But I think that’s ultimately right. But you also could say that even though the information was not [openly] released, they [the Zaoui legal team] was still able to do that, and carry out that process. We’ve spoken to those lawyers. Obviously, they thought it was a very time-consuming and difficult job for them to do….

Two final things – when are your findings due to be given to the government ?

The intention is that this report will be ready to be incorporated, or given weight in whatever happens in the general security legislation review. Our intention is to make it available in October or November.

That was my final question – how are your findings expected to dovetail with the security agencies review ? [ ie the one being conducted by Sir Michael Cullen and Dame Patsy Reddy, due for completion in February 2016.]

We’ve been working away with the intention of having our report available [to them] when they do their final considerations.