Dealing with closed courts

As a lawyer, it is rare to find oneself opposite nine out of the Supreme Court’s 12 judges, but it is perhaps unprecedented to find them broadly united in saying ‘I very much hope that the Supreme Court will never find itself in a [similar] position’ again. Following the judgment in Bank Mellat v Her Majesty’s Treasury, in which I acted for the bank, we are beginning to get a picture of how the case may have altered the nature of British justice at the highest level, with serious questions remaining about the use of secretive closed sessions in Britain.

Bank Mellat is Iran’s largest private bank – and it is a business stuck in the middle of the nuclear row between Iran and the west. The Treasury imposed sanctions on the bank in 2009, alleging that its activities supported the Iranian nuclear programme. We were confident of proving otherwise after success at the EU court, but in the UK the Treasury had a secret weapon.

By bringing the Supreme Court into closed session for the first time in the court’s history, the state was able to close the bank and myself out of court. Labelled a ‘secret court’ in the media, the provisions allowed the Treasury to admit evidence from the security services behind closed doors and away from the scrutiny of myself and my colleagues.

The court duly entered closed session for the first time on 21 March, in what Lord Hope described as an ‘unwelcome departure from the principle of open justice’. In ruling in favour of my client in June, the Supreme Court noted a whole raft of new concerns about the damaging effects of closed justice, having faced the very real possibility of keeping part of its judgment hidden.

The response of Supreme Court president Lord Neuberger was to outline a series of guidelines within the judgment in an honest attempt to ensure that Bank Mellat v Her Majesty’s Treasury remains an exceptional case.

 The guidelines can be divided into three broad areas: advice for the trial court, advice for the appellant court, and advice for parties and their legal representatives. While the former two of these are thorough considerations that will do much to protect the principle of open justice in the future, the necessary level of vagueness which the court is forced to adopt with reference to the third reflects the insurmountable problems posed by closed justice.

Trial court

When closed material is admitted at this level, the Supreme Court’s approach is to ensure that closed evidence is tagged, weighted and categorised. In the future, the appellant court will be able to look at the judgment and see at a glance where the closed material was found to be relevant, how it influenced the open judgment and how much weight it was given.

Not only will this allow greater openness and transparency for all the parties involved, but it should often be sufficient to restrict the escalation of closed material to the appellant court. In Bank Mellat’s case, for example, we now know that the closed material referred only to the connection of two of Bank Mellat’s ex-clients to the Iranian nuclear programme. As the bank’s representatives, we did not dispute this point in our appeal, making it an irrelevant addition to the open judgment

and a sideshow to the real issues at play.

Appellant court

On the appellant court, the Supreme Court is clear. Any use of a closed session at this juncture should occur only in the last resort and under exceptional circumstances. As Lord Hope describes it, the onus is on the state to show why a closed session is necessary. Even where a closed session is entered, there is much that can be done to reduce the impact on open justice. The special advocate and their opposite council should decide where the points of argument lie before the judges are brought into closed session to minimise the time spent there, while a gist should be used wherever possible to allow the excluded party to follow as much as possible the evidence being used against them.

Parties and legal representatives

Here, the effect of the closed session becomes far more difficult for the court to mitigate. In our case, the state insisted that the closed judgment was relevant, despite evidence to the contrary, leaving the Supreme Court facing an unfortunate ‘catch 22’. The judges could not make an informed decision on whether the closed evidence was relevant until after they had seen it.

In response, Lord Neuberger reminded the representatives for both parties of their duty to the court in not pushing for closed sessions unless absolutely necessary. Elsewhere, the judgment strengthens the position of the parties left out of the court by instructing judges to give ‘close attention’ to the opinion of the special advocate when deciding whether to enter closed session, but ultimately it is difficult to say how these provisions might have altered Bank Mellat’s position. The question of who should be awarded the benefit of the doubt in the future, for example, remains unclear. Equally, special advocates are a poor substitute for direct counsel, with their position in the closed session making it impossible for them to take any meaningful instruction from the people or organisations they are said to represent.

An imperfect solution

The importance of Bank Mellat v Her Majesty’s Treasury for the state of British justice cannot be overestimated. The provisions for closed material procedures by the Counter-Terrorism Act send a worrying message about the UK’s commitment to the rule of law. This legislation was foisted on an unwilling Supreme Court, but the provisions outlined by Lord Neuberger are largely effective in their attempts to mitigate one of its most worrying side-effects, namely the erosion of open justice.

Only time will show the full effects of these guidelines, but a careful examination of the judgment yields an unsettling conclusion. As long as closed sessions remain a feature of the court of final appeal, we will remain unable to fully protect against the inappropriate use of closed sessions.

Kartik Mittal is a solicitor at Zaiwalla & Co and acted for Bank Mellat