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Special advocates acting in closed hearings require more support


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The delayed Independent report on the operations of closed material procedure under the Justice and Security Act 2013 has now been published.

Sir Duncan Ouseley, the retired Judge that conducted the review, stated that support for special advocates was a “major issue”. Special advocates are appointed to deal with closed material procedure in civil proceedings that are heard without press or public presence. These hearings are conducted in this way to avoid disclosing material that has the potential to damage national security.

The claimants themselves are also excluded from these hearings, so the appointment and support of appropriate representatives, and the appropriate number of representatives, is particularly important. Sufficient support, according to Ouseley, includes premises, training, equipment, staff, and access to a library of closed judgments. These should all be on equal terms with what counsel for the government have access to. The resources in Northern Ireland apparently need addressing most urgently. The support needed will require an influx of cash and in general, it should be expected that closed cases are more expensive than conventional litigation.

The report also highlights that a significant number of cases settle. There have been concerns from advocates that this was not the point of the process of private hearings being set up. However, it is more likely that settlement was reached on “a sounder basis with the closed material procedure than would have been the case if there had been no such procedure, and the defendant had been unable to defend the case or the claimant unable to proceed with it, save for whatever public interest immunity might have forced into evidence. The cases are brought, defended or conceded on a more informed and considered basis”.

A few procedural changes were also suggested in the report. These include serving a draft closed defence; increasing the special advocate’s role in mediation; the ability for the court to require closed pleadings and grounds of challenge supplementary to the open submissions; and the addition of parties solely in closed proceedings. A database of closed judgments is also recommended.

With additional financial support and organisation, Ouseley suggests that there should be no need for successive reviews of this kind.

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