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Peikko

How audacious! The government tries to overturn principles of law dating back to 13th century

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When it first emerged that the government was attempting to have an entire civil case heard in secret, it seemed almost too audacious to believe. There may have already been legislation introducing special advocates, control orders, and indefinite detention without trial. But at first sight the idea that a single court case could be used to change the nature of civil proceedings seemed a step too far.

That's because, as the court of appeal ruled today, it was. With precision timing – as the country looks back over 13 years of New Labour's attempted inroads into fundamental rights – three of the country's most senior judges stated unanimously that the courts simply cannot tamper with the basic rules of civil proceedings, just because it's convenient for the government to do so.

On the surface, today's judgment concerned the procedure surrounding civil claims being brought by six men who were detained in prisons, including Guantanamo Bay and Bagram in Afghanistan. The men, including that most prolific source of controversial litigation, Binyam Mohamed, have not been charged with any offences and are now pursuing claims for a range of civil wrongs, including torture, false imprisonment and misfeasance in public office.

The government made an argument which on one level was seemingly mundane. The claim involves numerous government bodies, including the secret intelligence service, the foreign office and the attorney general, and allegedly more than 250,000 documents. In order to hear the case in open court, the government argued, each document would have to be vetted (more than half are apparently marked "secret") which would cost millions of pounds and take up to 10 years.

A foreign office spokesman put forward a pedestrian justification of the government's stance based on being able to "fully consider the large volume of relevant material already identified that cannot be disclosed openly without a real risk of causing substantial harm or real damage to the public interest".

But the sub-text to this argument is an enormous point of principle. It's hard to think of anything more fundamental to a civil trial than the ability to hear the allegations against you and respond. This is a hallmark of the adversarial nature of English procedure, dating back to at least the 13th century when it included trial by battle.

If claimants in a civil trial were not allowed to know the other side's defence, how could they ever achieve an even playing field in circumstances where the organs of state already enjoy significant advantages in court proceedings? How could the claimants bring any necessary follow-on proceedings arising from the government's case? How could they settle out of court – as is so often the outcome in civil proceedings and the most obvious way of reducing the phenomenal cost of litigation? And how could the rules of evidence be applied by the claimants to scrutinise the government's case if they have no access to what that evidence is?

The court's answer to these questions was, apparently, that the claimants would not be able to do any of these things, making the government's case "neither permissible … nor practical, in terms of effective case management or costs management".

And Lord Neuberger, the Master of the Rolls, added, it would put the court in the invidious position of "purportedly developing the common law, [but] in fact be undermining one of its most fundamental principles".

"The principle that a litigant should be able to see and hear all the evidence which is seen and heard by a court determining his case is so fundamental, so embedded in the common law, that, in the absence of parliamentary authority, no judge should override it … [it] represents an irreducible minimum requirement of an ordinary civil trial," he said.

The courts are rightly being praised by campaigners for openness and fair proceedings in all cases – including those involving allegations of terrorism. But, given that the only precedent in the history of the common law for trials being determined in secret is the Star Chamber – remembered by judges as "foreign, cruel, oppressive and unfair" – today's decision is not that surprising. Which leaves only one question remaining: what was the government thinking?

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Refusing to use the spellchick!

I have put you on ignore. No really, I have, but you are still ruining my enjoyment of this site. .

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This is a hallmark of the adversarial nature of English procedure, dating back to at least the 13th century when it included trial by battle.

I like the idea of "trial by battle" applied to terrorists.

If they kill someone, let their relatives battle them to the death.


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