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John Jackson, "Special Advocates in the Adversarial System" (Routledge, 2020)
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Jane Richards
Hello and welcome back to New Books in Law, a channel on the New Books Network. I'm Jane Richards and I'm speaking with Emeritus professor of Comparative Criminal Law and Procedure at the University of Nottingham, Professor John Jackson. Today we're going to speak about his book Special Advocates in the Adversarial System, and it was published by Routledge in 2020. John, welcome to the show.
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Professor John Jackson
Thanks very much.
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Jane Richards
Now, just to get us started, can you tell me a little bit about yourself and how you came to write Special Advocates in the Adversarial system?
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Professor John Jackson
Yes. I mean, my background really is in criminal law and procedure, as you've already sort of said in my title, so to speak. And that means really over the years I've spending a lot of time obviously researching in the areas of criminal law and procedure. And special advocates came upon me as a very new phenomenon, but in a very intense way, I suppose, when I was working as a parole commissioner in Northern Ireland. So in addition to being an academic in Ireland for a number of years and then in Nottingham more recently, I did this other work which was acting in sort of criminal justice capacity as a parole commissioner in Northern Ireland. And I came across there the phenomenon of special advocates, you know, sounds kind of very unusual. And we had a hearing. I remember the Chief Commissioner ringing me up saying basically I've got a very different kind of case for you to undertake. We working on a panel, but I was the chair of the panel and he said basically it's a situation where there's going to be what's closed information, which is secret information that is not allowed to be admitted to the prisoner or indeed to the public, but that in order to allow the interests of the prisoner to be represented, so to speak, at the parole hearing, there would be a special advocate appointed who would come in and look at the closed material and make arguments on it to us. And I must admit it really was quite a bizarre situation from the beginning. I hadn't really been used to this at all. It was definitely a one off. First of all, we had to view the close or what's called confidential or damaging information, damaging to informers or whoever might be involved if that information were to be leaked out. And it was obviously a context of a kind of terrorist case in Northern Ireland where somebody had been recalled on the basis of intelligence information that he'd been re engaging again with dissident IRA groups. So basically we had to go because of the sensitivity of the information, even to view it. We had to go to a special place in Northern Ireland, the Stormont Estate, to view it. Our phones were taken off, we went into this room, we were shown this confidential information which was a bit bizarre to us because it was all sort of intelligence information. And the way it was presented was very, very unknown to us, certainly to me. And we weren't allowed to take anything out of the room, so we couldn't take any notes and take them out the room. But we were allowed to read it and then it was stored away and we left. And as I say, that was really rather peculiar. We then had to organize. Usually parole hearings are in prisons, as you probably know, but in this case, because of the sensitivity of the security agents who would be called in the case to get evidence on the basis of their intelligence, we had to get a special courtroom organized for the hearing in Belfast Lyd Courts, which is basically the Crown Court there. And all that had to be organized. So that was again a very new experience. And then when we kind of got to the hearing we had, it was. We were told that it would take two parts really. There would be what's called the open part of the hearing where the prisoner would be there and there might be some open evidence against him which he or his counsel would be able to try to challenge. But in this case actually there wasn't that much open evidence. And really the bulk of the case was going to be the incriminating part for the prisoner was going to be the closed material. So after the open evidence was heard, the prisoner was sent away, his counsel were sent away, and in came this special advocate who kind of, you know, was appointed for the case basically to act in the interests of the prisoner, but wasn't allowed to communicate with the prisoner. Basically he's brought in to look at the intelligence, to make arguments on behalf of the prisoner. But because of the sensitivity of the information, a sort of Chinese wall starts to operate with the prisoner. He can speak to the prisoner before he sees the closed information, but once he's seize it, as we had seen it, then basically the shutters went down and he wasn't allowed to have any further communication with the prisoner. So it was a kind of bizarre situation where then we had security agents who came in behind screens. We weren't able to see them and they were examined in the normal ways. You would have sort of cross examination, but it would be cross examination. There'd be the government counsel who would sort of lead the or would introduce the intelligence information and then the special advocate would cross examine as you would have in a sort of normal hearing. But the difference was, of course, the prisoner wasn't there and his own legal representative wasn't there either. And we had to really then kind of make the best of that situation, decide what to do on the basis of it. But the special advocate kind of told us from the beginning, I know this is a new. I'm a new kind of beast, so to speak, in the legal world. I don't have a confidential relationship with the prisoner as a normal a lawyer would have. I'm brought in to act in the interests of the prisoner. But I don't represent the prisoner in terms of being solely there, you know, in a normal lawyer client relationship. But he kind said, but I'll steer you through the process. And even at the end of the process and we had to wear the evidence up, we had to produce what's called an open judgment. Part of the judgment which would be that would be open to the prisoner to see. But there was also the closed part of the judgment where we would make our ruling on the strength of the closed evidence. But that was never made known to the prisoner. All the prisoner knew at the end of the day was whether he was going to be released or not. And he was told something about the open evidence. But as I say in this case there really wasn't very much open evidence against him. It was all really intelligence information that he'd had meetings that were being observed by survey under surveillance with other dissident IRA members. They were all under surveillance. There was a kind of, it was set up in such a way that that kind of evidence couldn't be made public because there would be danger in not protecting the sources of the information. So it was all very hush hush and secret and very bizarre really to me anyway, who had come across this really for the first time. And I suppose I don't know what your question actually was there, Jane, at the beginning, but that's what got me interested and it sparked my interest in sexual advocates because as I said, really hadn't come across them before and I got the feeling that not many other people even in the legal world knew very much about them.
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Jane Richards
Yeah, I'd never, until I came across your book, I'd never heard of them. And you know, a lot of my research is in criminal law. Just seems, I don't know, it seems to fly in the face of sort of so many of the traditions of the adversarial trial, like for example, access to justice and you know, this idea that justice should not just be done but be seen to be done as well.
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Professor John Jackson
And it, yeah, it really does. I mean it's been obviously it has been severely criticized. The whole system and obviously closed procedures in themselves are very worrying because it means that as you say, justice isn't being done openly, but even more importantly perhaps the case against the so called accused or the prisoner or whoever is appealing, perhaps a particular court, a particular ruling by the Home Secretary. Often the context is for these cases is in the context of immigration cases where again there's sensitive information brought to bear that someone may have terrorist associations or whatever. It may be, and basically you're not told the case against you. All, you know, at the end of the day is you get the decision of the court or the tribunal and, you know, you're left very much in limbo. And I suppose, yeah, critics have sort of likened it very much to a kind of Kafkasque situation, you know, where you just don't know the case against you. There isn't even, as I say, a judgment really against you at the end of the day that you can see. All you know is this has happened, there's certain allegations being made against you and as a result, actions being taken, whether that would be, you know, that you're going to be deported or maybe detained pending deportation or in the case of the parole hearing, that you're not going to be released because you're considered to be a danger to the, to the public.
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Jane Richards
I think it's also interesting in terms of systems of precedent and how that would operate as well, like if you don't know the sort of previous rulings that have come before and how do you sort of build a case if.
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Professor John Jackson
Yeah, that's, that's very much a good point that one of the complaints, I mean, I did speak and we can talk about the research in a minute, how I up. But no, I mean, one of the issues was a lot of the special advocates themselves said that they didn't know that there isn't really a database of closed judgments. And still to this day, that's one of the gripes, I think, that the special advocates advocates have, that obviously the government keep these judgments to themselves. But there isn't really a database that's accessible even to the special advocates on past precedents and what's been going on in previous cases. And that's another dimension, I suppose, to the secrecy of it all. We're used obviously in law to having, as you say, judgments handed down. They're open, they can be argued about, but in this case, quite often maybe they're not even known about. So I suppose really it was just then trying to tease out that situation a bit more that got me interested in researching Special Advocates and ultimately writing this book.
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Jane Richards
So then actually, coming back to your research, can you tell me about your methodologies? How did you research this book?
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Professor John Jackson
Yeah, I mean, one of the problems from the beginning was that you can't observe special advocates in action. So normally if you were going to do a study, say of defense lawyers or prosecution lawyers or whatever it may be, you'd obviously maybe speak to them, but you'd want to see them in action. You know, you'd want to really, really study, not just from the books, what they've done, but maybe in action, what they're doing. That wasn't really open to me from the beginning. I mean, curiously enough, I did speak to a judge. We suggest that I should try and get, because of my position as a parole commissioner, I might be able to, what's called developed vetting clearance or security clearance in order to go into these hearings myself and observe them. But of course, the problem with that is that may be very well for me to do, even if I got that, but I wouldn't be able to disseminate what was going on. I'd be subject to the same restrictions as anybody else that you're not allowed to say anything about what goes on in a closed hearing. So that really wasn't a method type of methodology that was going to work. And ultimately, really, I was kind of then forced back to having to sort of speak to the special advocates themselves about the work that they did. And obviously there's been quite a lot of parliamentary history involved. There are reports that have been made about them in Parliament. Special advocates themselves have given evidence to parliamentary bodies, such as the Joint Committee on Human Rights in Parliament, which have been scrutinizing their work. And so there is that open material open there to obviously get hold of. And that was part of the research, was to sort of get hold of really all of the parliamentary debates and reports that there have been on Special Advocates, sort of the book, kind of the search. But I suppose what I was keen to do very much was to actually interview the special advocates. And obviously that meant I had to engage with the office that kind of sets them up or is involved in supporting them, the Special advocate support office, and speak to them and try to persuade them to give me the names of special advocates, because again, it's not something that is. You can just pick off a website, you know, who they are. And then also. So I really wanted to hear their authentic voice, you know, okay, I couldn't get into the hearings, but I'd seen a little bit from my own very limited experience what they were like. But I really wanted to sort of get out there a little bit more about who they were, what they do and how they react to this bizarre kind of justice, secret justice system in which they operate. I also wanted to speak to some judges and to some of the government counsel and some of the open representatives, you know, the lawyers who actually do in the open part of the hearings. That they obviously still are there, they would make submissions on behalf of their clients, but ultimately, you know, they feel very pushed out when it comes to the close. But they don't have any role at all, they're not allowed in, they don't have the security clearance to be there. And so they naturally enough feel quite aggrieved often that they're being pushed out of proceedings, that they would much rather be there in if they could be.
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Jane Richards
My next question is just picking up on something that you said about how special advocates react to their roles, because that was something that was really interesting in the book, reading their quotes and sort of hearing them talk directly about their experiences. Can you just comment on some of their reactions?
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Professor John Jackson
Yes, I mean, I think one of the first questions I had to ask them really was why are you doing this work? And they did sort of say, all of them, that they do find themselves perhaps compromised in the sense that they feel sometimes that they're operating in proceedings that are ultimately unfair, as we've said already, for the reasons that we've given. And a question, in fact, one of the special advocates himself put it when he resigned, and very few have resigned, but one did resign on one occasion saying that they felt that they were just simply a fig leaf for, you know, of respectability for an odious process, was the way I think he put it. But so I did ask them about that and I suppose ultimately they did say that they felt hampered because clearly they don't have the access that they would like to have with the so called client, you know, the person who, being subject to these proceedings, whatever they happen to be, and they don't have that normal client council client relationship or solicitor client relationship, they cannot communicate. They can meet the client at the beginning before they see the closed material. But as I said before, once they see it, then the shutters come down and they can't really have any more contact with the client. And I suppose ultimately, you know, what they said was, well, you know, basically special advocates are there to try to do some good in what is far from ideal system. And the question that they asked themselves was, am I doing more harm than good? Now, in some ways, you know, as someone said to me, it, you know, when you do have lawyers, particularly barristers, operate on a sort of cab rank principle whereby you probably know they should take a case on for, on behalf of anybody, no matter how they view the, no matter how distasteful they might have in their own views about the procedures involved. And in some ways it makes it Easier to justify whenever you are in a normal client relationship because you simply say, my role here is to act for my client. I may not like the procedures, I may not like the law, but that's my job. And you can kind of ethically, you know, accept that because, you know, you're there. You know, you owe duty to your client to represent the client as best you can. And you do so when you build up a sort of loyalty to the client. So that even, you know, in some of the hearings that you get, say in America and Guantanamo Bay, and I did speak to some of the lawyers there, they do feel that ultimately that's a very unfair process. The military commissions that there have been, but, you know, they're still there in America, can maintain their client counsel relationship, their close relationship with a client. They're not special advocates as such, that they have to get security clearance, but it's a different kind of system. Whereas special advocates are not there really. In fact, it's written into their role that they shall not be responsible to the person whose interests they are appointed to represent. That's specifically written in. It's a sort of in any process that they're involved in that's spelled out in the rules of procedure. But so it's difficult. But I suppose ultimately what they did say is, well, you know, maybe I can still do some good and, you know, they can interrogate the closed material. If they weren't there, who else would be there to represent them? Ultimately, maybe the tribunal itself, the judges. But, you know, that's maybe less fair because the judges themselves are at a point removed. They don't act in the interests of. They're supposed to do justice as a whole. They don't have a particular remit to act in the interests of any particular party in the proceedings. They're there to sort of of judge the proceedings as a whole. So in a sense, what they were kind of saying was, and some of them actually did speak almost as if these people that they're representing or those interests they're supposed to represent, best interest to represent is, you know, they are clients de facto, they treat them like clients doing the best for them that they possibly can in very difficult, admittedly in very difficult situations. But I suppose another thing that they did say, and I should maybe explain about their role, is that they don't just represent, so to speak, a client or an excluded party, if we can call them that in the proceedings. They have a job that they can do, which is to try to get as much disclosure out to the excluded party. So they have a very important role. And someone impressed upon me the fact that this is perhaps their most important role. They're maybe limited in what they can do in interrogating the intelligence information, but what they can do is maybe they can't because they don't have instructions on how to deal with it from their client. They're acting really without instruction. But what they can maybe do is pick up on maybe some bits of information that have been classified as confidential and make the argument that actually there's no real harm in this information and get that information out to the lawyers who are representing in a normal way, the excluded party, wherever it happened to be. And again, they felt that that was an important role, that ideally it really to be those lawyers who can take instructions who should be driving the process. But of course, that doesn't happen when there's closed material. But if they can get some of that closed material out into the open, then that is, again, coming back to they can do some good. So it does come down, I think, to this feeling. Do they feel ultimately that they're doing some good in the proceedings, you know, trying to get justice achieved even if the proceedings themselves are not ideal? Or do they feel ultimately one or two have. They can't participate any longer. And sometimes they say they do have to withdraw from a case because they feel that they can't really make a contribution on behalf of the person whose interests they're there to represent, and they feel compromised and that they withdraw. So that's the way they kind of justified it. And, you know, in some ways, you can look at special advocates as really being, you know, the best, you know, the. Of a bad job in a. You know, that maybe can be offered. It's interesting in some ways that, you know, they were. We can talk a little bit about their origins, but they were really a creature of human rights in some respects, to try to do good in a. In a bad situation rather than be part entirely just of a closed system. So to come back to your question, I think that's the way that they justified it to themselves. And I certainly got the impression from all the special advocates that I spoke to that they were very diligent in their desire to act in the interests. They did all that they possibly could. Certainly they assured me of this, to do the best that they could for the people who've been excluded from these hearings.
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Jane Richards
Maybe it's a good time to talk now about the origins of special advocates and how they've sort of evolved and what Regulation exists now around their use?
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Professor John Jackson
Yes, yes, certainly. I mean, I think one of the interesting things about them is that perhaps they can be called a creature of human rights. They do go back, which in the present time, when we've got the Human Rights act, you know, obviously being criticized in many respects. But arguably it was because of the Human Rights act that special advocates did evolve in our system, or at least it's because of our adherence to the European Convention on Human Rights. Because there was a case that was brought against the UK, I think it was about 1997, called Shahal, against the UK. It was an immigration case where basically an Indian sheik was being deported back to India because it was alleged that he had been involved in acts of terrorism. And back in those days, the only way that you could really dispute your deportation order that was made by the Home Secretary was that you would appeal to what were called Three Wise Men, who were basically people brought in to, again, look at the intelligence information and to make a recommendation to the Home Secretary as to whether in fact there was something in this that they should be deported, or maybe, on the contrary, that they shouldn't. But again, that system was very much a closed system. There wasn't an ability for people to be represented before them. It wasn't really a proper judicial process at all. And what the European Court of Human Rights said in this important case of Shahal was that it just was simply unfair and unacceptable when it came to people being detained and deported. And the ultimate thing here was, I think, the problem of detention in the first place. People's liberty shouldn't be taken away just on a whim of Three Wise Men or Homer's Secretary or whoever it happens to be. There was a breach of Article 5 of the European Convention. And the court kind of then said, well, obviously though, it accepted that there can be situations where there's allegations of terrorism that are made, that confidential information may be unavoidable in these kind of cases. You know, that you've got to, if there is confidential information, you know, intelligence information, if you like, then it should be used because, you know, there's a danger to the safety of the state if it's not. But what the court said was, and it looked at Canada as a sort of possible way of bringing some fairness into the system, was it said that there are techniques, and it particularly looked at the use of security cleared lawyers in Canada to say that there are techniques which can be employed which both accommodate legitimate security concerns about the need to protect the sources of intelligence and yet accord the individual a substantial measure of. Of procedural fairness. So what the Court was kind of saying was, you know, there's a way out of here. We are making this ruling against the uk, but there are ways in which you can ameliorate the peasant system that you've got. And so what then happened was that the government introduced a new body, did away with the three wise men, so to speak, and introduced what's called now and still exists, the Special Immigration Appeals Commission, which is in a special commission that looks into cases largely to do with immigration, where the Home Secretary said that in making an order against someone, it might be depriving them, might be deporting them or depriving them of citizenship or whatever, has used confidential information to make that judgment. It set up this new tribunal. And what it did, was it then also taking the sort of hint that was given to it, maybe by the European Court of Human Rights, and looking at Canada, it set up what were called, for the first time, special advocates to act in a way that I've already tried to explain in closed proceedings of the commission. So they would, again, as we were confronted with that, they would be the open part of the hearing, but then there would also be the closed part. And in the closed part, the special advocate would be appointed to act in the interests of the person who was appealing the Home Secretary's decision, whether that was, you know, deportation or deprivation of citizenship or whatever it happened to be. And that's really how they got off the ground. This act, which was called the Special Immigration Appeals Commission Act 1997, for the first time, sort of introduced this concept of the Special advocate into UK law. And from there, it kind of set off, you know, it got involved. They began to be appointed in other kinds of proceedings as well, particularly proceedings, you know, which had a kind of terrorist connection. In Northern Ireland, where, you know, I had that parole hearing, there was a tribunal that had to look at, under the Good Friday Agreement, releasing prisoners, but they couldn't be released if they were a danger, a continuing danger to the public. So there were hearings specially designed for dealing with that situation where there might be. Where these prisoners might continue to be a danger. They would be able to use intelligence information or damaging information, if you like, in order to make judgments. And a special advocate was introduced. That was in 1998, at the time of the Good Friday Agreement, just a year after the Special Immigration Appeals Commission Act. So they took off in a variety of different contexts. Then in the uk, we had a situation where the siac, as it's called this commission got involved in making decisions maybe where foreign nationals were going to be deprived of their liberty. This was after 9, 11 and after that then we had control orders that were made against people which kind of restricted their liberty. They were actually orders that were made by the High Court rather than by the Special Immigration Appeals Commission. But again in those situations we had often confidential information being used in order to justify allegedly these patrol orders and special advocates were brought in to the High Court proceedings and we had even then later on terrorism prevention and investigation measures, so called t pims introduced against people and you could appeal them to the High Court, you know, to get a hearing to say that there's no justification for them. And again special advocates were used there and then just sort of finally in 2013 they were actually introduced under an act which allows them to be introduced in any civil proceeding whatsoever where there is perhaps a need for security intelligence information to be used in a closed procedure. And whether that's maybe somebody maybe suing the government on grounds of being maybe government, particularly the security services, maybe colluding with them as in the Guantanamo Bay sort of situation, colluding in their ultimate torture. People would bring claims against the government. And the problem that the government said in those situations was it couldn't defend itself because. Because the only way it could defend itself was by using confidential information which it wasn't allowed to, couldn't be used, couldn't be put into court. So along came the justice and security act of 2013 which says, well now you can bring it into court but in order to alleviate the unfairness, again that can happen when you do so is you would appoint a special advocate. It so as I say we have a kind of situation where they have really grown and grown in the UK context. I suppose one shouldn't maybe make too much of the fact that, you know, I don't want to give the impression, you know, that they're everywhere and partly, I mean you were saying yourself you didn't really hadn't heard of them before. I hadn't heard of them before. I found in the course of my research that There were about 166 cases over the three year period of the research, which admittedly is some Time ago now, 2015 to 2018, there were about 166 cases overall where special advocates were appointed in England and Wales and in Northern Ireland. I don't think to this day they've yet been used in Scotland. So you can make that what you will. You might consider a lot of Cases or in the wide spectrum of all the cases, of course, that are heard, it might be not very many. But what's maybe interesting is that in the UK particularly, they're used across such a spread of different kinds of proceedings, including, as I say, civil, civil actions as well.
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Jane Richards
And then can you talk a little about how special advocates have spread beyond the UK borders? Is there sort of a different experience in the UK compared to other jurisdictions?
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Professor John Jackson
Yes, well, that's a very good question. I mean, one of the things I did want to try to bring into the book a little bit was a sort of comparative overview of how have these taken hold. They are basically, I think, a UK innovation, but with that little hint from maybe, you know, the use of security cleared lawyers in Canada. But it is interesting that they have got off the ground in other countries, as you say. So they were used in, funny enough, in Canada itself. The situation in Canada was that in order to be deported, if you were a permanent resident, you would go before a committee, a sort of security committee, and there were security cleared lawyers on that committee who would interrogate the evidence. But if you were not, you didn't have permanent residency, but you were just simply a foreign national, you could be deported simply by the Federal Court in a situation though, where the Federal Court would look at any confidential information, but there wasn't any advocate, so to speak, there on behalf of the person who was to be deported. And the Canadian Supreme Court basically said, said that the Canadian procedure used by the Federal Court was a breach of the Canadian Charter of Rights and Freedoms because it was a violation of a fundamental principle of justice that you should know the case against you. And Perth here we had people being deported, they had no representation to combat the evidence against them. And the Supreme Court said that that was unfair. And as a result of that, then the Canadian government, rather following in the footsteps of the uk, introduced a system in Canada involving special advocates, very much modelled on the UK system, whose role again was to act in the interests of the party excluded from the proceedings, but again, not able to take instructions from those people because again, again, they couldn't disclose the confidential information to them. So Canada then that was about 2008. In New Zealand in 2009, they began to be used in immigration cases. They've been used on very sort of rare occasions, but sometimes in Hong Kong and in Australia in 2016, they began to be used rather in proceedings, rather paralleling the control order proceedings I mentioned earlier, where basically people are not necessarily deported or detained, but very sort of strict controls are put on them, they're maybe put into house arrest because it's alleged that they are, you know, they're involved in acts of terrorism or terrorist associations. Again, the information used there is often confidential. Presidential and special advocates are appointed to sort of represent people in those situations. And we've even seen them actually in Denmark as well, where again, in an immigration context, a commission rather like SIAC in the uk, the Special Immigration Appeal Commission that is in Denmark, they've introduced special advocates there as well. So what's maybe interesting though is that in these other countries it's really been confined very much there use has been confined very much to the immigration context. They haven't spread out beyond in other kinds of proceedings so much as has happened in the uk. And there are some differences. Although the model is there, it's tweaked and there are differences that have that between each different system, as you might imagine. And you know, it's interesting maybe to pick up on one or two of those sometimes, but ultimately the model is a shared model across these jurisdictions.
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Jane Richards
And then one of the key concerns that comes through in the book are the ethical issues. You've alluded to this somewhat already, but can you talk more about the ethical issues regarding special advocates?
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Professor John Jackson
Yeah, I mean, I think the problem here for the special advocate is how can they act in the interests, the best interests, if you like, of the excluded party when they aren't able to take instructions from that party. And as I say, this is a dilemma for special advocates, but it does raise some sort of stark questions in one or two situations. I mean, for example, what happens if the, the, if the excluded party simply says that they don't want to be represented by a special advocate, they want to simply withdraw from the proceedings altogether. And that has happened on some occasions. What does a special advocate do in that situation? Does the special advocate then withdraw or not? And technically it seems that the special advocate, because the special advocate isn't taking instructions from the client, the individual, then it's open to the special advocate to continue nevertheless, notwithstanding the wishes of the individual not to be involved in the process at all. And you know, ethically it's a dilemma for the special advocate. I mean, normally, obviously, if your client says they don't want to be involved in the proceedings, they won't give you any instructions, you, you have to withdraw. But the, the point about that for the special advocate is that they're not tackling in that situation. They're there to act in the interests of the client and, or the Excluded party. And you know, special advocates sort of said to me ultimately that they felt that they have to make their own decision here. They can't be including, just guided totally by what the outside party wants because it may be that they come across confidential information which can actually be interrogated and which can be of benefit to the excluded individual, might result in them not being subject to a deportation order or rather an appeal being successful against such an order. And that was certainly something very much foremost in their minds as to what they should do in that situation. And there's no easy answer, I suppose, is really what they said to me. But they felt ultimately sometimes they have withdrawn. And the court, the siac, have often criticized special, well, application. It hasn't happened very often, you should say, but occasionally special advocates have found, felt they've got to withdraw. What happens then is there'll probably be a reappointment of one anyway because again, the appointment is made, you know, by the Attorney General. I should maybe make that clear. It's an appointment that's made because basically the act, say, the legislation says that when you have these closed procedures, you've got to have a special advocate and then the, that the appointment is made by the law officer, special advocate from a list of special advocates who is appointed. If you withdraw, another one will be appointed in your place. So that definitely was an issue, I think, for the special advocates. And there were other problems sometimes, for example, what happens if they become privy in closed procedures to the fact that the excluded party has maybe got a civil action against somebody? You know, there's actions that they can take. You know, they have, maybe their rights have been infringed in some way, maybe they've been ill treated. Whatever happened, they've come across this information. Where do they go? They're not allowed to convey that information to the excluded party. So the excluded party can't do anything about it. They're not aware. They may be aware of how they were treated, obviously, but they're not aware of the legal action that, you know, the intelligence information that there may be about them which might lay sort of a claim that they would have independently of something that they know about. You know, they've come across things that happen, happen in this closed setting. What do they do? Who do they go to? Can they go to the prosecutor, crime Prosecution Service for some sort of criminal action? It's sort of unknown territory. And I suppose that's very much the kind of issues that special advocates kind of talk to us about, that they often felt quite isolated you know, they have these ethical dilemmas, these problems, and they are very much isolated. They're isolated obviously from the excluded party. They're isolated from their lawyers. They obviously not part of the government, they're appointed by the Attorney General, but they act in very independent capacity. They're not part of the court, so they obviously owe duties to the court, as any advocate would do, but they don't have any special allegiance to the court. They're very much in a world of their own. Own and often very pressurized in that world. Feeling squeezed. Often in a situation where they feel that they are under pressure, you know, they get disclosed information. One of their jobs is first of all. And sometimes that can happen. It can, you know, can suddenly appear in a hearing. They've got to very quickly decide, could some of that be disclosed to the other party? They've also got to decide how do they deal with it, how do they interrogate it? All this happens in a very quick period of time. The government wanted to get on with the case. The lawyers for the excluded party want to get on with it. They want to have a ruling from the court and they feel very squeezed in the middle. In fact, I think there was a nice metaphor that one of the special advocates said to me that they felt that they were like the ham in the middle of a sandwich where all sorts of condiments are spread on them, but they're sort of out of their control and they're kind of squeezed from all sides, feeling very much under pressure, but without the support that not even having a solicitor, you know, an instructing solicitor with them to help them, not even really able to discuss the case with other special advocates, because once they get hold of the closed information, that's really for them alone to know about. It's very much just for you alone. You can't go to somebody down the corridor and say, well, what about this? I've got this case. As lawyers, we tend to do. Do what should I do in this situation? You know, that's ruled out for them as well. They do have, as I mentioned earlier, the Special Advocate support office, which is there, which sort of organizes timetables for them. It's sort of, you know, some case management that goes on on their behalf there that they will take some of those duties away from the special advocate and they will assist, but they're not instructing solicitors. They're not going to get involved in the details of how, you know, how someone should be represented or what sort of arguments to make. That won't be part of their remit.
- [48:27]
Jane Richards
And so then thinking about accountability. Can you tell me more about this? As you know, the special advocate is, on the one hand, accountable to the court, but also sort of not, but accountable to the person they're representing or their best interests. How does accountability fit into all of this? This.
- [48:46]
Professor John Jackson
Well, I think that is a very good question. I mean, ultimately, there's an accountability gap somewhere here, really, because they're not accountable to the excluded party, as it's actually written into the rules of procedure in which they operate. They're not responsible to the person whose interests they're appointed to represent. They're not accountable really to. To the Attorney General or to the government because they're supposed to act in an independent capacity. Yes, it's true they are appointed by the Attorney General, but that's a simple sort of appointing role. Once they're appointed, there's no more communication with the, as I understand it, with the Attorney General's office. They have duties, obviously, to the court, as I said, as any other advocate would do, but they're not, you know, they don't take instructions from the court. They're not like the role sometimes you have, of an amicus curiae, where the courts can sometimes, as you probably know, appoint lawyers on their behalf to interrogate maybe particular situations or to investigate particular situations that they would like investigate it, and to put arguments to the court in a kind of neutral capacity, but under the auspices very much of the court. That's not really their job job. The special advocate's job, the special advocate's job is purely acting interests of the excluded party. So the question that you say is, to whom are they ultimately responsible? And I suppose, you know, if one looks at it really perhaps the only answer is they're responsible maybe to their professional bodies, the Bar Council, if they're barristers, or perhaps the Law Society, if there's solicitor advocates. Ultimately, you know, they owe a sort of responsibility for ethical responsibilities to their professional associations, but we haven't really seen the professional bodies taking much active role or interest in their proceedings. It is true that there are now certain limited situations where they can be brought in. One of the things that sometimes can be annoying, I think, for special advocates is that they can be told, you know, that they're not allowed to, even though they've maybe been appointed, they have a conflict of interest. I should explain, on the appointment side, it's not just simply, sorry, I should say this, maybe that the Attorney General makes the appointment formally, but there is now a list of Special advocates, a special advocate panel in England and in Northern Ireland. So if you want to be a special advocate, you put yourself forward to one of these panels, you have to get this very, very heavy security clearance that I understand can go on for many months. So it's not just a light touch security clearance. It's a very, very developed vetting system. You're then on the panel and when a case comes about and an excluded party is going to be subject to these proceedings, these closed proceedings, the excluded party actually has a role in being able to appoint a special advocate from the panel. Not a point, but to recommend, say they want this particular special advocate. And obviously they often take advice from their lawyer. So these panels are known to the legal profession. And a lawyer might say to the, Well, I know Mr. X or Ms. Y, they're good, you know, I would recommend them. And then the excluded parties, that's who I want. But ultimately it's not the safe. That's the recommendation. At the end of the day, it's for the Attorney General to decide side. And sometimes the Attorney General might go back to the security services or wherever it happened to be within government and you know, they might say, well, there's a, this, this lawyer, maybe they don't really, you know, even though they've maybe got security clearance, they've been involved in too many of these cases before, they're maybe tainted as a result of hearing closed evidence, you know, that they might leak or there may be some other conflict of interest. So they will sort of bar the appointment of that individual. And that is a niggling process, I think, for the special advocate who feels that they've gone through all this security clearance and then to be told, no, you're not allowed actually on this particular case to act in the interests of the individual, you won't be appointed. Is there some panel to determine cases where there might be a dispute about this? Well, not up to now, very limited. But there is a role, I think, for the Bar Council in the kind of rules setting up, not special advocates, you know, in the guidance that saso, the Special Advocate Support Office has set down some guidance for special advocates. And they say that in a situation like that they could maybe appeal to their professional body where there's a conflict of interest to make the argument that basically there isn't one. But on the tenting issue, basically, that's really not gone anywhere. That's basically, basically if you're considered tainted, that's the end of it. You've no redress as a special advocate to really challenge that. So I think there's a question here as to whether maybe the professional bodies should play a greater role, maybe even sort of setting out guidance for special advocates, maybe an ethical code of some kind to deal with some of the. Or spell out some of the answers to some of the questions maybe that special advocate advocates have when they've got ethical dilemmas, or at least just from a transparency point of view, perhaps put it out there in a code as to what their specific role is and to whom to at least there's some accountability there in terms of getting it out, what their role is, what they're supposed to do. And obviously there are issues that would presumably go to their professional body. At the end of the day, if it was considered that they weren't acting, that they were acting unethically. At the end of the day, I think it would be the professional bodies that would have to step in, maybe bar them from the special advocate panel. That's never happened so far as I know. And my feeling about special advocates is, as I said before, they're very diligent, they're very earnest in the work that they do. But I think you're right that there is an account. At the end of the day, there is still an accountability gap when it comes to whom to whom special advocates are accountable. Accountable.
- [55:30]
Jane Richards
So then do you see any alternatives to special advocates and where do you see them going in the future?
- [55:35]
Professor John Jackson
That's a good question, Jane. I mean, I mentioned there earlier the American system. There's basically two other models that you could use, I think, instead of special advocates, and they have been used in certain different kinds of contexts. In the US they don't have special advocates. So they maintain very much the idea that if you are an individual, you're entitled to have a lawyer to represent you and that lawyer will be your own lawyer. There are obviously situations where there again is confidential information. I mentioned Guantanamo and the military commissions there. There's situations even in criminal cases where lawyers may get access to classified information. And what happens really there is that lawyers have to seek security clearance. But if they get that security clearance, and again, I've been told that's a very, very rigorous process. But if they get it, they can act in a normal capacity a lawyer would for their clients, and they then are brought into these closed proceedings. So still in a sense representing the individuals. The individuals, of course, aren't there, but they will act in a very much the way that a special advocate would act. But the point is that they maintain their confidentiality with their client, they maintain their communication with the client. And when you put that system to the British government or certainly to government council, as I did here in the uk, they just would say that that wouldn't work at all because there's always a danger that information might leak out. So if you allow the lawyer to maintain communication with the client, there is a danger that that very, very sensitive information will leak out in some way. In other words, you can't really trust the lawyer and not necessarily that the lawyer would deliberately leak, but inadvertently may say something or another. The way that seems to be dealt with in the US is that there is a system of court security officers or people who are kind of who guide the lawyers about what they can say or not say. So there's a kind of person appointed to, in a sense, kind of keep a hand, keep a handle on what's going on when it comes to the lawyer communicating with the client and guiding the lawyer. And if the security officer says, you can't say this, then it can be said and you're kind of then freed to do it. One of the worries that special advocates have mean they don't like not having to communicate with the clients. But obviously they also are very wary, you know, that they may inadvertently leak out some information that might be very damaging to individuals. You know, in terms of the sources of informants and so on, the names of them and whatever it might be, they're worried about that. But in the US they seem to have this system where basically the hand is held by these court security officers. I mean, I looked at this a little bit and they said that they feel, the US lawyers, obviously, naturally enough, they look at the special advocate system and think that's a very odd system because how can you act in the interests, again, we put that question before of someone whenever you can't communicate with them. So that's another model that is used in the US and has been used particularly, maybe most famously in these Guantanamo Bay military commissions. The other model, I suppose is the amicus curiae model that I mentioned earlier, where basically instead of a special advocate being appointed, the court itself would appoint someone to act not necessarily solely in the interests, but to put the arguments for the excluded party, but ultimately would have an allegiance to the court, court and would not really have any responsibility or even necessarily sole role to act in the interests of the individual, but would inform the court information arguments that might be made on behalf of the excluded party and would be very much then part of the court. As I Say, and that's actually a model that is used in the UK in the Investigatory Powers Treasury Tribunal, which is appointed to hear complaints that are made of unlawful intrusion, basically sort of privacy concerns by public bodies. Unlawful intrusion by public bodies. If you bring a complaint, again, that may involve information that you're not privy to, but the tribunal will be privy to it. But the tribunal can appoint and does have, in fact, a kind of amicus curia council attached to the tribunal, which will question and put arguments, make disclosure submissions to the tribunal, make submissions on behalf of the claimants, will get involved in cross examination of witnesses, will have access to the relevant closed information, and in fact, we'll also be able to continue communication, communication with the claimants. So again, unlike the special advocate, the shutters don't go down. But that's because in a sense they're acting in a role of the court. They don't have an exclusive role to act in the interests of the claimants. And they can approach the claimants and ask questions and so on. They can also maybe get closed information more readily maybe than a special advocate might, because they're part of the traffic tribunal. And if the tribunal wants this information, surely it's going to maybe be easier for it to get it than say a special advocate might. If the special advocate is in a closed hearing and wants more information that's closed, that might be barred to them. Whereas, you know, if it's the tribunal saying we want it, it's maybe somewhat different. So that would be another model that could be used. And so there's a specific instance where that kind of model is used. But I suppose the question there is whether there is really enough transparency for the claimant doesn't really have in that situation, somebody acting exclusively for them, you know, and they, you know, might not feel justice is being done, they might not feel justice is being done anyway, but they might not feel, you know, that's enough of a safe guard for them to have their complaint properly aired and for a just decision to emerge.
- [63:14]
Jane Richards
And then thinking about this all together, do you have any sort of final thoughts for the listeners?
- [63:22]
Professor John Jackson
I mean, it's a very interesting phenomenon. I think it's fair to say that it's taken off the ground. They started up over 20 years ago and there are still issues, very much that specialize advocates have, that are particularly concerned in the special sort of austerity times that we're maybe living in, that they're not being fully resourced in the way that they should be. They don't feel that saso, although SASO does its work for them, this is the support office. They don't have the. There's not training for them. They're thrown into this role. They lack equipment, they lack access to a database of closed judgments, as we've already said. So they themselves, themselves are. The rule is emerging, it's evolving. It seems to have taken off the ground. I don't think it's going to disappear tomorrow. It is evolving. Changes do happen. You know, I mentioned the communications rule. There's now been a sort of review that says maybe closed sort of special advocates could speak to the open representative lawyers about issues, particular issues, not maybe the content of obviously of any closed information, but maybe in terms of the timetabling of things, of what could they maybe give some summary to the open lawyers about what went on in the closed proceedings? At the moment you're not supposed to say anything, but surely maybe some things could be said. So there's sort of a feeling that certain things could be relaxed, perhaps the rules evolving. And ultimately, I suppose the question is, you know, and I think maybe you put that maybe in an, you know, do the ends justify the means? You know, in a sense, is it worth having continuing with this role? And I suppose what I would say is I think they can play a valuable role in ameliorating some of the, you know, the inherent unfairness of closed proceedings, given that where closed proceedings are going to maybe continue in some shape and form in certain kinds of situations, it's better to understand 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. But I think at the same time, we do have to be careful about the context in which they operate. I mean, if they're being used, as maybe they did in siac, to try to improve a situation that was previously very, very unfair for individuals, then there's some justification if on the hand they're being used, almost like, as I said, a fig leaf of respectability for proceedings that are inherently unfair. Maybe for example, the kind of internment procedures that we had, you know, where foreign nationals were being locked up just after 9, 11. And that was one situation where one of the special advocates did say that they resigned because they felt the whole process was just so tainted there that you can't deprive people's liberty without telling them what the case is. And although you might be able to introduce some minimum information that the courts have said that people are entitled to. Now, if your liberty is to be deprived of, there's some minimum type of information about the allegations that ought to have to be given. You're not given by any means, obviously the whole case against you. Then those situations are, you know, where I think question marks have to be asked about the role. And I think suppose this idea of them being used in civil proceedings where claims are made against the government, is it a step too far to introduce them? I know certainly there was anxiety about the judicial process being tainted there in ordinary civil proceedings where you have these special advocates that aren't known being used arguably to bring the whole judicial process maybe into some kind of disrepute at the end of the day. So I think it depends very much maybe the context in which they're used. But I certainly do feel, having done the research and spoken to the special advocates that they feel that they're doing a good job. I've witnessed a special advocate doing a good job and I feel that there is a valuable role for them to play in certain limited contexts.
- [68:01]
Narrator/Advertiser
Yeah.
- [68:02]
Jane Richards
And I think that's a really important takeaway that they do have a valuable role in certain contexts. Yeah, that's something I really took away from the book. So thank you so much. John, just before we go, I've taken up a lot of your time, but can you just tell me what you're working on now?
- [68:19]
Professor John Jackson
Well, I've moved on a little bit to look at other things, but I guess, you know, I'm still interested really in the role that lawyers play in courts. And one of the things that now I have been involved in a project on, and there's a book coming out is really more about centrally to my own research, which is criminal proceedings, crime court proceedings involving particularly vulnerable witnesses. And I've been looking at, with a team of people in research funded by the Nuffield foundation, looking at how lawyers should question, question vulnerable witnesses, whether that would be children, people with some disability, or indeed even not necessarily vulnerable but feeling intimidated. Sexual complaints in sex cases, whether there are ways in which we need to get away from standard traditional cross examination and examine in a different kind of way. And it's interesting that even in that context now we are seeing in situations where the court says that complainants, some complainants, if defendants want to represent themselves, they can no longer cross examine complainants in sexual cases. And we see there lawyers being appointed by the court to take on the role of cross examination even if the defendant doesn't want to have anything to do with them. So There's a kind of different role for the lawyer even in these standard, sort of much more sort of conventional processes in the Crown Court, I suppose what interests me is how the role of lawyering is changing and adapting and becoming more innovative as challenges come to bear. We're not simply talking any longer, just about maybe two parties in a legal dispute. We are talking about other interests, the interests we've talked a lot about, security interests today, but the interests of complaints tenants, their interests have to be taken into account. Is there a role for lawyers to represent them directly in these proceedings? I think it's all very interesting because it's showing how lawyers are evolving, their roles are evolving as challenges come about for the courts and how to, at the end of the day, deliver justice for everyone.
- [70:46]
Jane Richards
That sounds really fascinating, really important work and I look forward to reading that too, especially when your book comes out. Yeah, that sounds really great. So, I'm Jane Richards. I've been speaking with Professor John Jackson about his latest book, Special Advocates in the Adversarial System, published in 2020 by Rootledge. We look forward to your new book, John, when it comes out, but just for now, John, thank you so much for your time.
- [71:15]
Professor John Jackson
Thank you very. Sam.