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Kafka didn't do dialogue

But I am very impressed that Brian Barder, the ex-SIAC lay member who resigned on principle does. Mr Barder commented on my post via the trackback at his blog. I’ve posted a comment in response, but I’d like to post his comment and my response here, for two reasons.

Firstly, because I still find it astonishing that a blog post from a relatively ill-informed person like me can attract a response from someone who has held a significant position in the matter under discussion/ranted about.

Secondly, because he makes some entirely valid criticisms that I would like to admit or address in the same place as the original post.

Having received an email from Mr Barder alerting me to his comments that was above and beyond the call of duty, I’d also like to say he is a gentleman.

Brian Barder said in response to ‘Kafka’:

The full trackback is worth reading, but its attack uses such scattershot in all directions that its effect is somewhat blunted. It’s rather out of date in some respects and misrepresents what happens in SIAC in others. But its anonymous author is right to be disturbed by the revelation that mutually contradictory closed evidence has been offered by the home office in two recent SIAC cases and that this has been discovered only by accident. The official reviewer of anti-terrorism legislation has asked for more information about this and it may result in procedural changes designed to minimise the risk of it happening again. Incidentally the ‘nearlylegal’ post is wrong to suggest that anyone with high security clearance and experience in dealing with intelligence and security material must be a spook or ex-spook.

I replied:

Thank you for your email and this comment. You are entirely right that my post was scattershot. It was indeed a rant.

I also fully realise that detention without trial was effectively ruled out in the House of Lords overturning of SIAC in X v SS for the Home Department [2004] (although I have direct information on the effect of control orders on some of those released from Belmarsh that makes clear that control orders are not much better, if at all). This was why I said ‘was or is’ at the relevant point. I’d agree this wasn’t clear enough.

I suspect that we might differ on whether SIAC was, in principle, a reasonable approach (or rather ‘least objectionable way’) to address the situation. My sense was that the process was always open to error and/or abuse because the ‘secret’ evidence was effectively uncontestable. The House of Lords judgement in Rehman simply made matters worse for me, although I fully understand why it was a tipping point for you.

This fiasco over contradictory evidence confirmed both my fears over error/abuse and the inherent problems of a system where effectively uncontestable evidence is secretly presented. Particularly where all that is to proved is that the Home Secretary had grounds for suspicion that a threat to national security or interests, however indirect, might be involved.

I competely accept that the lay person with security clearance and experience need not be a spook. That was a rhetorical stretch too far there. That it was a ‘defence’ barrister who caught the contradiction does make one question the effectivity of the security expert though, when they are presumably in place to catch issues with the intelligence.

I hope you don’t mind, but I’ve posted your comment and this response on my blog.

I could well continue be out of date or wrong in some respects, I am not engaged in this area, and I am open to correction. But, hey, I’m flattered by the response. T’interweb is a wonderful thing.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

1 Comment

  1. Brian Barder

    Please forgive this disgracefully belated response to your more than generous remarks. For some reason I missed them at the time, probably because it was very soon after a nasty injury to my leg inflicted when my bike fell on me with me on it.

    Just one point of clarification. You wrote, very understandably:
    “That it was a ‘defence’ barrister who caught the contradiction does make one question the effectivity of the security expert though, when they are presumably in place to catch issues with the intelligence.”

    The point was that by pure chance the same Special Advocate (the security-cleared barrister who sees the ‘closed’ evidence and represents the appellant’s interests in the closed sessions from which the appellant and his lawyers are excluded) happened to be appointed to two different SIAC cases which involved some of the same, or related, closed material: so he was able to spot the inconsistencies between the closed evidence presented in one SIAC case and that presented in another. The ‘lay’ member of the SIAC panel, however experienced in security and intelligence matters, could not have done this unless he or she had also happened to sit on the two relevant cases. There are around 20 or so lay members of SIAC and it’s a matter of chance which of them sits on any particular case, and even longer odds against any one of them happening to sit on two cases which see overlapping — and mutually contradictory — closed evidence, as the Special Advocate providentially did.

    I agree of course that the Special Advocate’s discovery puts the reliability of the evidence in other cases in a pretty questionable light, although it’s not easy to see how similar abuses (or just possibly honest mistakes?) can be prevented in future without some elaborate and expensive procedure for expert review of the evidence in all SIAC cases in search of contradictions and inconsistencies. In any case, I don’t think this risk applies only to closed evidence: it could happen with the ordinary evidence heard in open court and available to the appellants and their lawyers, who would usually have no way of knowing whether any particular evidence in their own case was inconsistent with the open evidence in some other, apparently unconnected, SIAC case. Indeed, the fact that there are only a few Special Advocates appointed to SIAC must have shortened the odds against any one of them seeing the closed evidence in two different cases.

    On the more general point about closed evidence and closed sessions, I think it has to be accepted that in some exceptional cases there may be evidence against a person suspected of involvement in terrorism which can’t be revealed to him and his lawyers without a serious risk that its disclosure will enable them to identify its source: and when the source is a secret informer or mole working for the Security Service or Special Branch from within a small community such as a local mosque, blowing his cover could well put his life in danger (as well as making it impossible to recruit informers in the future, which would be a devastating blow to the chances or detecting and forestalling terrorism). If such evidence can’t be quickly corroborated by other means, there may be a choice between leaving at liberty a man known to be engaged in terrorism, or else prosecuting him and seeking a conviction based on evidence which will blow the cover of a secret informer. The SIAC procedure is the only escape from this dilemma so far devised, and although it’s open to obvious objection in denying a suspect the right to know all the evidence against him, it seems to me on balance that it’s marginally less objectionable (given the limited safeguards represented by the Special Advocate system) than any alternative. For that reason I would support introducing the procedure in very exceptional cases, and only when authorised by the presiding judge, in special criminal courts with a judge and jury for terrorism-related cases where the key evidence against the accused can’t safely be disclosed to him and his team without the risk of identifying a secret human source whose continued anonymity and safety must be paramount.

    But I quite understand the reasons of those who disagree about this. I don’t though know what other solution they propose.



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