The intensification of counterterrorism policing has involved the growing use of secret evidence. The protocol for this was established in the Special Immigration Appeals Commission (SIAC) but it is a practice that is now used in other courts too.
The Special Immigration Appeals Commission (SIAC) is a court set up to deal with immigration cases where national security concerns are raised. Modelled on a colonial administrative system, decisions are made by three selected judges and no jury. The court hears evidence in a mixture of open and closed sessions, and decisions can largely be set out in closed judgements. In the closed sessions, appellants and their lawyers are not allowed to see the evidence against them but instead they are assigned a (security-cleared) special advocate to represent them, and with whom they are not permitted to communicate once the advocate has been privy to the evidence against them.
The Court was initially charged with hearing deportation cases where national security concerns were raised but has subsequently become the main court hearing appeals against deportation, citizenship deprivation and refusals of naturalisation in national security/ terrorism related cases. Initially set up in 1997, there were only three appeals against deportation orders heard before SIAC until September 2001. The use of the court grew significantly after 9/11.
In SIAC suspicion alone is sufficient basis for disciplinary action. As the logic of this system for dealing with terrorism cases has been entrenched and normalised, it has promoted the growing use of closed court procedures and secret evidence in other courts too.
Decisions on the portions of evidence to be disclosed in open court and which sections are to remain closed are made by the secretary of state, and though this is subject to review by SIAC, the secretary of state cannot be forced to disclose material. Furthermore, even if the appellant successfully contests the accusations against them, the court can uphold deportation orders if the secretary of state points to intelligence material that asserts the appellant is a threat to national security.
In the post-9/11 context, it has become apparent that some of the government’s secret evidence against those accused was likely sourced from interrogations in other countries that involved the use of torture.
In Ajouaou v Secretary of State, a case concerning an appeal by a Morrocan man, Jamil Ajouaou, against his pending deportation from Britain, SIAC rejected appeals that it should not consider such evidence, maintaining that the object of the court was not to consider ‘proof’ but ‘reasonable grounds for suspicion’. The Court of Appeal likewise has upheld that SIAC could lawfully consider evidence obtained by torture.
Perhaps the biggest impact of SIAC is that it has established a cultural precedent and fine-tuned operational capacity for the use of closed courts and secret evidence. Secret evidence has been used in employment tribunals, in mental health review tribunals, and in immigration cases that are not marked as national security–related cases. There has also been recent attempts to move these proceedings to criminal court.