The rise in secret courts or ‘closed material proceedings’ (CMPs) in recent years has called into question our commitment to long-cherished principles of open justice and due process. This debate has somewhat overshadowed the role of special advocates, who are appointed to represent the interests of parties excluded from such hearings. These advocates pose a challenge to the traditions of advocacy in the adversarial system but an international consensus across the common law world appears to be emerging that they may be justified on human rights grounds of fairness in that they bring a measure of procedural fairness to closed material proceedings. This paper examines this claim and considers the extent to which the rise of special advocates poses a threat to the adversarial tradition.
Bar Standards Board (2014) Bar Code of Conduct. London: Bar Standards Board.
6.
BoonA (2014) The Ethics and Conduct of Lawyers in England and Wales. 3rd ed. Oxford: Hart.
7.
BoonANashS (2006) Special advocacy: Political expediency and legal roles in modern judicial systems. Legal Ethics9(1): 101–124.
8.
ChamberlainM (2009a) Special advocates and procedural fairness in closed proceedings. Civil Justice Quarterly28(3): 314–326.
9.
ChamberlainM (2009b) Update on procedural fairness in closed proceedings. Civil Justice Quarterly28(4): 448–543.
10.
CodeMRoachK (2006) The role of the independent lawyer and security certificates. Criminal Law Quarterly52: 85–111.
11.
DamaškaMR (1986) The Faces of Justice State Authority. New Haven, CT: Yale University Press.
12.
DennisI (2013) The Law of Evidence. 5th ed. London: Sweet & Maxwell.
13.
FieldS (2009) Fair trials and procedural tradition. Oxford Journal of Legal Studies29(2): 365–387.
14.
ForceseCRoachK (2015) False Security: The Radicalization of Canadian Anti-Terrorism. Toronto: Irwin Law.
15.
ForceseCWaldmanL (2007) Seeking Justice in an Unfair Process: Lessons from Canada, the United Kingdom and New Zealand on the Use of Special Advocates. Ottawa: Canadian Centre for Intelligence and Security Studies.
16.
GlennP (2013) Legal Traditions of the World. 5th ed. Oxford: OUP.
17.
GrayA (2014) A comparison and critique of closed court hearings. International Journal of Evidence & Proof18(3): 230–259.
18.
GutTKirschSMundisDTaylorM (2013) Defence issues. In: SluiterGFrimanHLintonS. (eds.) International Criminal Procedure: Principles and Rules. Oxford: OUP, pp.1203–1298.
19.
House of Commons Constitutional Affairs Committee (2005) The Operation of the Special Immigration Appeals Commission (SIAC) and the Use of Special Advocates. 2004–2005 HC 323-1. 3 April.
20.
Ip J (2008) The rise and spread of the special advocate. Public Law717–741.
21.
Ip J (2009) The adoption of the special advocate procedure in New Zealand’s Immigration Bill. New Zealand Law Review2: 207.
22.
JacksonJ (2007) Evidence and proof in parole hearings: Meeting a triangulation of interests. Criminal Law Review54: 417–440.
23.
JacksonJSummersS (2012) The Internationalisation of Criminal Evidence. Cambridge: CUP.
24.
JenkinsD (2011) There and back again: The strange journey of special advocates and comparative law methodology. Columbia Human Rights Law Review42(2): 279–355.
25.
JenkinsD (2015) The handling and disclosure of sensitive intelligence: Closed material procedures and constitutional change in the ‘five eyes’ nations. In: LennonGWalkerC (eds) Routledge Handbook of Law and Terrorism. London: Routledge, 266–281.
26.
Joint Committee on Human Rights (2007) Counter-Terrorism Policy and Human Rights: 28 Days, Intercept and Post-charge Questioning. 2006–07 HL157, HC 394. 30 July.
27.
Joint Committee on Human Rights (2008) Counter-Terrorism Policy and Human Rights (Eighth Report); Counter-Terrorism Bill. 2007–08 HL 50, HC 199. 7 February.
28.
Joint Committee on Human Rights (2010) Counter-Terrorism Policy and Human Rights (Sixteenth Report): Annual Renewal of Control Orders Legislation 2010. 2009–10, HL64/HC 395. 26 February.
29.
Justice (2009) Secret Evidence. London: Justice.
30.
KafkaF (1976) The Trial. London: Secker and Warburg.
31.
KavanaghA (2010) Special advocates, control orders and the right to a fair trial. Modern Law Review73(5): 836–857.
32.
LeighI (1996) Secret proceedings in Canada. Osgoode Hall Law Journal34(1): 113–173.
33.
Lord Goldsmith (2002) Advocate to the court. Family Law32: 228.
34.
LubanD (1984) The sources of legal ethics. Rabels Zeitschrift48: 262.
35.
LubanD (1988) Lawyers and Justice: An Ethical Study. Princeton, NJ: Princeton University Press.
36.
NanopoulosE (2015) European human rights law and the normalisation of the ‘closed material procedure’: Limit or source?Modern Law Review78(6): 913–944.
37.
Ní AoláinFGrossO (2013) (eds) Guantánamo and Beyond: Exceptional Courts and Military Commissions in Comparative Perspective. Cambridge: CUP.
38.
NicolsonDWebbJ (1999) Professional Legal Ethics. Oxford: OUP.
39.
PattendenR (2003) Law of Professional Client Confidentiality. Oxford: OUP.
40.
RoachK (2006) The post 9/11 migration of Britain’s Terrorism Act 2000. In: ChoudhryS (ed.) The Migration of Constitutional Ideas. Cambridge, CUP.
41.
RoachK (2012) Secret evidence and its alternatives. In: MasferrerA (ed.) Post 9/11 and the State of Permanent Legal Emergency. Dordrecht: Springer, pp.179–200.
Special Advocates Support Office (2006) Guide to the Role of Special Advocates and the Special Advocates Support Office: Open Manual. London: Special Advocates Support Office.
44.
TomkinsA (2014) Justice and security in the United Kingdom. Israel Law Review47(3): 305–329.
