Secret judgments database opened to special advocates and senior judges

A database of intelligence and security judgments has been created by the judiciary to resolve the Kafkaesque problem of how to improve access to decisions that are secret.

In a little-noticed practice direction released this month, the lord chief justice, Ian Burnett, and the senior president of tribunals, Sir Ernest Ryder, set out rules for a “library of closed judgments” covering cases in England and Wales.

Human rights groups and the media have repeatedly raised concerns about the impact of a body of secret law emerging which is neither properly indexed nor available for the public to consult.

The library of closed judgments – a term reminiscent of an institution in a Harry Potter novel – will be opened to security-cleared special advocates and judges.

Only senior judges are deemed to have sufficient security clearance. In a decision ahead of the inquest into the Russian businessman Alexander Perepilichnyy, it was ruled that coroners could not see sensitive security and intelligence material.

Many lawyers feared that without an accessible repository of secret judgments only the intelligence agencies would hold a detailed record of such decisions.

Increasing numbers of cases are heard in “closed material procedures” (CMP) during which security-sensitive information is given “in camera”, secretly. The frequency of such trials has grown since the 2013 Justice and Security Act extended them into civil courts.

Often judgments handed down by tribunals, such as the Special Immigration Appeals Commission, produce two versions of a decision – one public but with sections redacted, the other in full but only shown to judges and security-cleared special advocates in the case.

The number of such secret judgments over the past two decades is believed to run into the hundreds, creating a problem of how, if precedents are set or secrecy issues decided, lawyers approaching fresh cases discover significant, relevant decisions.

Until now, “closed” or secret judgments have been locked in a variety of locations, including government departments and agencies. They have now been collected together in a safe in a secure section of the Royal Courts of Justice. It includes all secret judgments from the past five years as well as some older judgments.

Special advocates had complained about the old system which sometimes resulted in lawyers spending days developing ingenious lines of argument only to be informed by a judge in the know that an issue had already been decided in a previous, secret judgment.

The new practice direction said: “A single printed copy and an electronic copy of each closed judgment and any related open judgment must be lodged with the [Royal Courts of Justice] senior information officer within 14 days of being delivered or handed down, for consideration for inclusion in the library of closed judgments now established in the Royal Courts of Justice.”

Not all secret judgments will be retained. Some would “be disposed of securely”. Those kept “must at all times be maintained under secure handling provisions as set down in closed judgments library – security guidance of 2017”, it said. The guidance has not been published.

The new practice direction follows legal arguments developed after the court of appeal’s 2016 decision when the Guardian and other news organisations objected to restrictions imposed on reporting the Old Bailey terror trial of Erol Incedal. It did not, however, refer to media coverage of CMP cases.

Dr Lawrence McNamara of the University of York, who monitors courts’ use of closed judgments, said: “This puts into practice what people have been pressing for. There needs to be a properly-indexed repository of closed decisions and it is good to see this is now in place, with a reasonable scope.

“From what has so far been made public, it’s not clear what are the criteria for deciding which judgments should be retained and which disposed of. It is not clear who will be consulted in the decision-making process.

“There are hugely important public interest cases. The Belhaj case – which involved rendition and mistreatment – resulted in a public apology in parliament. Closed material procedures were sought in that case; we need to know whether those will be retained.”

Corey Stoughton, the advocacy director at at the human rights organisation Liberty, said: “Any court which is premised on secrecy goes against the principles of open justice on which our legal system is based.

“As long as secret tribunals such as the Investigatory Powers Tribunal, are in use, they must be subject to the most stringent scrutiny that circumstances allow to ensure that security services do not infringe on our civil liberties. It is welcome that lawyers will have better access to vital information, but if government is to be held to account in a way that adequately protects our liberty, this level of secrecy has no place in our justice system.”