Podcast Summary

Podcast: New Books Network – New Books in Law

Host: Jane Richards
Guest: Professor John Jackson, Emeritus Professor of Comparative Criminal Law and Procedure, University of Nottingham
Episode: "Special Advocates in the Adversarial System" (Routledge, 2020)
Date: November 14, 2025

Episode Overview

The episode features Professor John Jackson discussing his book, Special Advocates in the Adversarial System. The conversation explores the origins, development, practical experiences, ethical dilemmas, and accountability of special advocates, particularly in the context of the UK’s legal system and its influence worldwide. The episode provides both a practical and theoretical insight into a little-known but crucial area of law involving closed procedures and the representation of individuals excluded from sensitive legal proceedings.

Key Discussion Points & Insights

1. Introduction to Special Advocates (02:15–10:03)

• Jackson’s personal encounter:
  • He first encountered special advocates as a parole commissioner in Northern Ireland, dealing with cases involving secret or intelligence-based evidence, especially in terrorism-related parole decisions.
  • Described the "bizarre" nature of hearings, with closed information, security restrictions, and the unusual role of the special advocate (“a new kind of beast” in the legal world).
  • Closed proceedings involved two parts: an open hearing (defendant and lawyers present) and a closed hearing (special advocate present, but not the defendant or their counsel).
  • Special advocates are security-cleared lawyers who represent the interests of the excluded party (e.g., prisoner) but, crucially, cannot communicate with them about the closed material once they’ve seen it.
• Quote:

  “He can speak to the prisoner before he sees the closed information, but once he’s seen it...basically the shutters went down and he wasn't allowed to have any further communication with the prisoner.” — Prof. John Jackson (08:00)

2. Challenges to Adversarial Traditions (10:03–13:15)

• Special advocates represent a challenge to core adversarial principles like “justice being seen to be done” and the right to know and challenge the case against you.
• Kafkasque justice:
  • Critics liken the process to Kafka’s The Trial, where the accused is in the dark about accusations and sees only the outcome.
• Lack of accessible precedent—closed judgments aren’t available even to special advocates, eroding the development of case law.

3. Research Methodology (13:15–17:03)

• Jackson faced research challenges due to secrecy; direct observation was almost impossible due to closed proceedings.
• Main sources: Interviews with special advocates, government counsel, judges, open representatives, and analysis of parliamentary reports and debates.
• Quote:

  “I really wanted to hear their authentic voice...what they do and how they react to this bizarre kind of justice, secret justice system in which they operate.” — Prof. John Jackson (15:52)

4. Reactions and Dilemmas of Special Advocates (17:03–25:27)

• Many advocates feel “compromised” or like a “fig leaf for an odious process,” yet persist because they believe they can “do some good” in a far-from-ideal system.
• The absence of a “normal” lawyer-client relationship—special advocates act “in the interests of” but not “on behalf of” the individual, and are forbidden a duty of confidentiality.
• Their most tangible benefit may be to push for the maximum possible disclosure to the client’s lawyers.
• Occasional resignations or recusals occur when special advocates feel the process is too compromised.
• Quote:

  “Am I doing more harm than good?...Maybe I can still do some good...if they weren’t there, who else would be?” — Prof. John Jackson (21:20)

5. Origins and Evolution (25:27–35:35)

• Rooted in human rights developments, particularly the Chahal v UK case before the European Court of Human Rights (1997), which demanded procedural fairness in cases involving secret evidence.
• Inspired by Canadian use of security-cleared lawyers; UK adopted special advocate system starting with the Special Immigration Appeals Commission Act 1997.
• Gradual expansion from immigration and terrorism cases to broader contexts, including civil law (e.g., Justice and Security Act 2013).
• Still relatively rare in absolute numbers but unique in breadth of application in the UK.

6. International Comparisons (35:35–40:13)

• Parallel systems now exist in Canada, New Zealand, Australia, Denmark, and occasionally Hong Kong—mostly limited to immigration and national security cases.
• UK stands out for using special advocates across a wider range of proceedings.

7. Ethical Dilemmas (40:13–48:27)

• Core dilemma: How can an advocate act in the best interests of someone from whom they cannot take instructions after seeing closed material?
• Cases arise where the excluded party refuses representation; technically, the special advocate can continue regardless of the excluded party’s wishes.
• Sometimes they learn information (e.g., about mistreatment) which cannot be relayed to the excluded party—raising isolation and ethical pressure.
• Quote:

  “They felt that they were like the ham in the middle of a sandwich where all sorts of condiments are spread on them...squeezed from all sides, feeling very much under pressure, but without the support...” — Prof. John Jackson (45:15)

8. Accountability and Appointment (48:27–55:29)

• Special advocates have no client accountability (and are forbidden from having it), are not directed by the court, and act independently from government after appointment.
• Primary accountability is arguably to professional bodies (Bar Council or Law Society), but there is an “accountability gap.”
• Appointments are controlled via panels; the excluded party may recommend a specific advocate, but the Attorney General makes the final decision, often with input from security services.

9. Alternatives to Special Advocates (55:29–63:13)

• US Model: Defense lawyers get security clearance and can continue to communicate with clients—seen by UK authorities as too risky.
• Amicus Curiae Model: Court-appointed advocate not exclusively representing the individual’s interests, but making submissions on their behalf—used in very limited contexts in the UK.
• Each model presents its own transparency and fairness concerns.

10. Future Directions and Final Thoughts (63:13–68:01)

• The system is evolving: Calls for improved resources, training, and access to precedents for special advocates.
• Possible evolution in communications restrictions and partial relaxation of certain rules.
• Special advocates play an important, if imperfect, role in “ameliorating the inherent unfairness of closed proceedings,” especially where such procedures are likely to continue.
• Context is key in judging their value: They can be an essential safeguard in some cases, a “fig leaf for an odious process” in others.
• Quote:

  “…it’s better to have them than to not have them, because at least there’s some degree of adversarialism that’s maybe brought into the proceedings that wouldn’t otherwise be there.” — Prof. John Jackson (66:17)

Notable Quotes & Memorable Moments

• “Justice isn’t being done openly…but even more importantly perhaps the case against…the accused…you’re not told the case against you.” — Prof. John Jackson (10:22)
• “They were really a creature of human rights in some respects, to try to do good in a bad situation…” — Prof. John Jackson (24:23)
• “There’s an accountability gap somewhere here really, because they’re not accountable to the excluded party…they’re supposed to act in an independent capacity.” — Prof. John Jackson (48:46)
• “How can you act in the interests…of someone whenever you can’t communicate with them?” — Prof. John Jackson (56:35)
• “I feel that there is a valuable role for them to play in certain limited contexts.” — Prof. John Jackson (67:10)

Important Segment Timestamps

| Time (MM:SS) | Segment | |------------------|-----------------------------------------------------------------| | 02:13–10:03 | Jackson’s background and his first special advocate hearing | | 10:03–13:15 | Implications for adversarial justice & problematic secrecy | | 13:15–17:03 | Research methods and practical challenges | | 17:03–25:27 | Advocates’ reactions, motivations, and ethical challenges | | 25:27–35:35 | Origins and legal evolution of special advocates | | 35:35–40:13 | Comparative/international uses of the system | | 40:13–48:27 | Deeper ethical dilemmas facing special advocates | | 48:27–55:29 | Accountability & appointment mechanisms | | 55:29–63:13 | Possible alternatives; US and amicus curiae models | | 63:13–68:01 | Final reflections on the future of special advocates |

Conclusion

This in-depth discussion between Jane Richards and Professor John Jackson spotlights the ambiguous, challenging, and evolving role of special advocates within adversarial legal systems. Jackson provides both lived experience and scholarly analysis, illuminating why the use of special advocates is both necessary and deeply problematic—serving as both safeguard and symptom in legal contexts that require secrecy. The episode is a valuable resource for anyone unfamiliar with this field, as it covers the legal, ethical, and comparative dimensions, while not shying away from the hard questions about fairness and accountability.