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Disclosure Issues and the Role of the Special Advocate

Anita Guha, barrister, of 7 Bedford Row, reviews the role of special advocates after the decision in Chief Constable and another v YK and others [2010] EWHC 2438


Anita Guha
, Barrister, 7 Bedford Row

Introduction
This article will explore the issues raised in the case of Chief Constable and another v YK and others [2010] EWHC 2438 (Fam) ("YK") heard before the President, Sir Nicholas Wall, regarding whether it would be appropriate for the court to appoint special advocates in a forced marriage case where there are orders granted for non-disclosure of evidence. The critical issue is whether the withholding of evidence will infringe the affected party's right to a fair hearing. The court has to balance the competing interests of the parties; namely the need to protect victims or informants who have provided highly sensitive information, and the entitlement of the respondents to know the case being relied upon against them, and to rebut or challenge the evidence.

Non-disclosure orders are frequently sought in forced marriage cases on behalf of the victim or police, upon the premise that even the 'gist' of the material information should not be disclosed to the other parties, as this in itself will heighten the risk of alleged harm or violence to the victim or a third party.  The authorities are frequently alerted to forced marriage cases when a boyfriend, or a friend of the victim, reports the matter to the police. Non-disclosure orders are requested within proceedings to protect the source of the information, and to guard against any risk of reprisals by family members. Alternatively, the victim may have divulged the information regarding the threat of forced marriage or abusive behaviour by his or her family members. If the victim is still living within the family household and does not wish to sever the link with his or her family, any sensitive information must be kept confidential.

Lord Mustill articulated the following cardinal principle of procedural fairness in the case of Re D (Minors)(Adoption Reports: Confidentiality) [1996] AC 593:

"a first principle of fairness that each party to a judicial process shall have an opportunity to answer by evidence and argument and adverse material which the tribunal may take into account when forming its opinion. This principle is lame if the party does not know the substance of what is said against him (or her) for what he does not know he cannot answer……..1 

"It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party."2 

However the courts have stated that this principle is not absolute and that there are exceptions when non-disclosure of evidence may be warranted. This is an issue that is particularly prevalent in cases involving allegations of forced marriage or honour based violence.

At an earlier hearing in the proceedings in YK (ibid) before Black J, the court invited the Attorney General to appoint a special advocate to represent the interests of the parents in light of the order for non-disclosure to "assist in ensuring that a fair procedure is adopted, which ensures that (A's parents) can answer the allegations made against them, and that the evidence on which court ultimately proceeds is properly tested."3 

The Attorney General declined the invitation to appoint a special advocate but was legally represented at the subsequent hearing. The question of who would fund the cost of the appointment was raised, and this is an issue that will require resolution if there is any expansion in the use of special advocates in the future. The President concurred with the position of the Attorney General, and held that it was inappropriate for the court to seek assistance from special advocates in this particular case, and went on to say that it would usually be inappropriate to appoint special advocates in a forced marriage case.4

Origin of the special advocate
Prior to 1997, there was no concept of a special advocate in the English legal system. They were introduced in the immigration arena when Parliament enacted the Special Immigration Appeals Commission Act 1997, establishing the Special Immigration Appeals Commission (SIAC), to determine asylum and immigration appeals where the grounds for the decision for removal or deportation were based on national security. 

The 1997 Act was passed by Parliament as a response to the decision of the European Court of Human Rights in Chalal v UK 23 EHRR 413. The European Court held that the system in the UK, which did not enable a person's asylum claim to be considered by a court or tribunal in cases involving national security, violated the appellant's Article 6 rights to a fair trial, as there was no mechanism for him to be informed of, or challenge, the evidence that was being relied upon against him. The European Court acknowledged that there were instances when the right to full disclosure may have to be qualified in the public interest and in the interests of others, but made the observation that there were alternatives to a total absence of judicial scrutiny.

The special advocate system was adopted in the UK in cases of detention for the purposes of deportation on national security grounds, and cases regarding judicial supervision of control orders. However, it is important to note that the use of special advocates is not restricted to areas in which they are regulated by statute. For instance, in criminal proceedings, 'special counsel', the equivalent of a special advocate, can be appointed as an exceptional measure and as a last resort where there is no other course that will adequately meet the overriding requirement of fairness to the defendant.5  Special advocates can also appear in Parole Board hearings,6 hearings before the Security Vettings Appeal Panel and within judicial review proceedings.7

The role of the special advocate was described by Sedley LJ8 as being "to test by cross examination, evidence and argument the strength of the case for non-disclosure" and if the case for non-disclosure is made out, "to do what he or she can to protect the interests of [the other party], a task which has to be carried out without taking any instructions [from the other party or his lawyers] on any aspect of the closed material".

A unique feature of the system is that the special advocate does not owe a duty of care to the appellant in respect of the work that is undertaken in the case. Particular emphasis is placed upon their "absolute independence".9  Once a special advocate is appointed, there is a demarcation between the "open" and "closed" stages of the proceedings. Upon appointment, the special advocate is served with the open material and is permitted to have free and unrestricted access to the appellant to discuss the case prior to the service of any closed material. However, the special advocate is prohibited from initiating any communication with the appellant or his legal team once the closed material is served upon him unless the court's permission is obtained in advance of such communication.

Baroness Hale stated in the case of Secretary of State for the Home Department v MB; Secretary of State for the Home Department v AF [2007] UKHL 46, [2008] 1 AC 440, [2007] 3 WLR 681:

"Both judge and special advocates will have stringently to test the material which remains closed. All must be alive to the possibility that material could be redacted or gisted in such a way as to enable the special advocates to seek the client's instructions upon it. All must be alive to the possibility that the special advocates be given leave to ask specific and carefully tailored questions of the client. Although not expressly provided for in CPR r76.24 the special advocate should be able to call or have called witnesses to rebut the closed material. The nature of the case may be such that the client does not need to know all the details of the evidence in order to make an effective challenge."

The primary task of the special advocate in circumstances where he is not acting on the appellant's direct instructions, is to seek to challenge the classification of some or all of the evidence as 'closed' and to persuade the court that a summary or 'gist' of the information can be safely disclosed to the appellant. Arguments often deployed are that the information is already in the public domain or that disclosure would not be damaging to national security or other public interests. The court will then be required to rule upon whether such evidence can be disclosed at all and, if so, in what format. If the court does make an order for disclosure, the Secretary of State may elect not to disclose the evidence if the decision is taken not to place any reliance upon the evidence. 

The decision in Chief Constable and other v YK and others
In summary, the factors that influenced the court's decision in YK (ibid) to decline the request to involve special advocates in the case were:

(i) The nature of relief under the forced marriage legislation is protective and quasi injunctive. Given that protection is the primary purpose of the statute, this is sufficient to invoke PII (public interest immunity) or non-disclosure on grounds of Articles 2,3 & 8 of the European Convention on Human Rights 1950 ("ECHR").
(ii) Part 4A of the Family Law Act 1996 confers jurisdiction upon the court to make ex parte orders.
(iii) The highest the case is put for any respondents when an ex parte order is made is that the respondents are served with the papers and that they be given the opportunity to make representations. The President took the view that "there is no requirement for there to be a conventional hearing at which the respondents are alerted to the case against them and have the opportunity to rebut it".10 
(iv) Nothing within the forced marriage legislation stated that court should not place reliance upon hearsay evidence, or evidence which had not been disclosed to all the parties.
(v) On the facts of the case, a special advocate would not serve any particular purpose given that the judge was in a position to resolve the PII or disclosure issues.
(vi) Special advocates should not be employed to resolve issues of fact that may arise on any application to discharge.
(vii) In this case, the application for discharge was being pursued by the victim, A, and not by the respondents who were A's family members. Thus the court considered that the determinative factor on the discharge application was the "health, safety and well being" of the victim11, and this was not an issue upon which the court could receive any assistance from a special advocate.
(viii) Given the protective nature of the court's jurisdiction, the court could decide any discharge application without either detailed investigation of factual issues or the intervention of special advocates.
(ix) The President was "tempted" to the view that EHCR Article 6 is not engaged at all unless a respondent pursued an application to set aside the forced marriage protection order. It was noted that the ECHR Article 8 rights of the respondent might also be engaged if they were prohibited from arranging a marriage for their child.

The rationale of the President's decision in YK (ibid) that the 'closed evidence' did not have any material impact upon the cases of the family members is easily understood given the facts of that case. However the court will be faced with a far more difficult challenge if any of the respondents in the case actively oppose the need for any orders, or apply to discharge the ex parte order, and the victim is asking that the order should be made, or remain in force.

The argument against there being any court led inquiry into disputed facts, is that the relief being sought prohibits a person from committing acts which are unlawful in any event, and that it will not prejudice a person to be bound by an order that they must not force a person to marry against their will. However, if powers of arrest or penal notices are attached to such orders and respondents face potential arrest and imprisonment in the event that they are accused of breaching the order, should they not be entitled to challenge the need for an order if they assert that there is no evidence to support any claim of forced marriage or honour based violence?

Consideration should also be given to the fact that the court may be asked to make interlocutory orders, such as a passport order requiring a person to surrender their passport. The court will have to balance the conflicting interests of the parties given that such an order curtails the freedom of movement of the person named in the order and affects their ECHR Article 10 rights.

In appropriate circumstances, it is suggested that the court will have to grapple with the following issues in determining whether non-disclosure of evidence constitutes procedural unfairness:

(a) Is the "closed  evidence"  relevant to any case that might be argued by the respondent and might it enhance their case?
(b) Is the "closed evidence" the only evidence being relied upon against the respondent?
(c) What is the probative value of the "closed evidence"?
(d) Is the "closed evidence" corroborative of the "open evidence" and will it make any material difference to the respondent's ability to argue his case?

The President did not preclude the use of special advocates in other forced marriage or honour based violence cases and, acknowledging that there might be circumstances where it would be appropriate, referred to the case of Re T (Wardship: Impact of Police Intelligence) [2009] EWHC 2440, [2010] 1 FLR 1048 within his judgment and gave his express approval to the reasoning and decision made by McFarlane J that special advocates should intervene. The President stated that this approach could equally be applied in a forced marriage case, even though the court in Re T (ibid) was determining an application in wardship.12

Use of special advocates in family proceedings
It is reported that special advocates intervened for the first time in a family case in Re T (ibid). McFarlane J presided over a fact finding hearing in wardship proceedings which had been listed to determine the truth of a number of disputed allegations including one that the father had taken a contract out to kill the mother. The proceedings took 1½ years to determine, and comprised of a series of 'open' and 'closed' hearings involving special advocates and the police. McFarlane J made a number of adverse findings against the father and his parents but concluded that there was insufficient evidence to find that the father had taken out a contract to kill even if the court took all the evidence from the open and closed proceedings into account.

McFarlane J held in his judgment that there were a number of important and potentially conflicting principles that the court needed to balance:

(i) To evaluate the material and to determine whether the allegation was proved and make findings to inform any subsequent decisions concerning the ward's welfare.
(ii) To conduct a fair hearing and respect the Article 6(1) rights of the parents under the ECHR 1950.
(iii) The duty of the police and the court to protect the Article 2 right to life of the alleged victim.
(iv) To protect the rights or position of any third parties or agencies who were not parties to the proceedings but who might be adversely affected as a result of disclosure.
(v) To respect the Article 8 rights of all family members to family life.
(vi) To avoid acting unlawfully and in breach of Part 2, Chapter 4 of the Serious Organised Crime and Police Act 2005 by disclosing material relating to police protection.

The court emphasised that there was an onus upon the police to disclose all the material in their possession that was relevant to the issue of the contract to enable the court to determine what information should or should not be disclosed, and that it was not the function of the police to undertake that task. The court stated that it was the refusal by the police to disclose any of the information held by them that led to the decision to appoint special advocates:  

"[I]t was essential for the court to establish some form of filter or buffer between the MPS and the parties in the wardship proceedings through which the relevant evidential material could pass or otherwise be assessed by the court in a manner that respected the parties' rights under Article 6(1) of the European Convention and in a manner that was as far as possible commensurate with any countervailing claims of public interest immunity. In this case the special advocate procedure allowed the court and the special advocates to discharge the duty described by Baroness Hale of Richmond in testing 'with the utmost scepticism' the MPS's blanket assertion of PII. The result was that the vast majority of the MPS material (some 90% in my estimation) was disclosed in one form or other. In relation to the small amount of material that remains undisclosed, the special advocates again with Baroness Hale of Richmond's strictures in mind, conducted a process of cross-examination and submission designed to test the material and enable the court to see any weakness there may be in its evidential value."13 

Conclusion
The emergence of the special advocate in the family court is a recent phenomenon. It is probable that there will be an increasing number of family cases that pose intractable challenges in respect of disclosure issues. It cannot be discounted that as the jurisprudence continues to develop in cases involving allegations of forced marriage and honour based violence, a particular set of facts will present themselves so that the court may have to adopt a different approach and sanction the use of special advocates. The special advocate system has been commented upon as imperfect, but it is arguably the best solution that has thus far evolved to afford a person with a 'sufficient and substantial measure of procedural justice'14 in circumstances where the court is satisfied that he should be denied the right to be informed of the case against him.

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Footnotes
[1] Pages 603-4 
[2] Page 614 
[3] Paragraph 39 in YK(ibid) 
[4] Paragraph 89 
[5] R v H and C [2004] UKHL 3, [2004] AC 134 
[6] Roberts v Parole Board [2004] EWHC 3120 (Admin); [2004] EWCA Civ 1031A;  [2005] UKHL 45 
[7] B v Secretary of State for Transport (unreported) cited at p19 of the Open Manual on special advocates published by the Treasury Solicitors 
[8] Murungary v Secretary of State for the Home Department [2008] EWCA Civ 1015 para 17 
[9] Para 113 of the Open Manual 
[10] Paragraph 17 of YK(ibid) 
[11] Section 63A(2) of the Family Law Act 1996 
[12] Paragraph 106 in YK(ibid) 
[13] Paragraph 30 
[14] Secretary v State for the Home Department v MB; Secretary for State v AF (ibid)