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Lawyers attack Blunkett anti-terror plan

Audrey Gillan
Saturday February 7, 2004
The Guardian
A group of the country's leading barristers has condemned a plan by the home secretary to extend anti-terrorist legislation to allow British terror suspects to be tried on secret evidence they would never hear.
The criticism is likely to embarrass David Blunkett because the six lawyers have been approved by the government to work as special advocates in immigration cases. They are experienced in working with secret evidence and therefore well-placed to comment on the plans.

In an open letter the six say they would refuse to take part in trials under the proposals.

The letter was prompted by the Guardian's revelation this week that Mr Blunkett was considering extending the anti-terror laws to allow the introduction of criminal trials conducted in secret with a non-criminal standard of proof.

This would widen the use of special advocates, the state-vetted defence counsels who are given access to secret evidence provided to immigration courts by the security services. Their job is to represent the accused at the secret hearings but not relay back to their "clients" what they are alleged to have done.

The letter says attempts to apply this system to criminal cases would be "untenable".

Nicholas Blake QC, Andrew Nicol QC, Manjit Singh Gill QC, Ian Macdonald QC, Rick Scannell and Tom de la Mare write: "We are convinced that both basic principles of fair trial in the criminal context and our experience of the system to date make such a course untenable.

"It would contradict three of the cardinal principles of criminal justice: a public trial by an impartial judge and jury of one's peers, proof of guilt beyond reasonable doubt, and a right to know, comment on and respond to the case made against the accused.

"The special advocate system is utterly incapable of replacing these essential fundamentals of a fair trial.

"An unfair trial determining guilt is not something we could be associated with. We are also convinced that there are other less draconian ways in which our laws can be adjusted to address the secretary of state's concerns."

In an interview while on tour in India Mr Blunkett said he intended to revise emergency legislation before 2006, when he is obliged to do so. He said the special advocates were essential to protect security service sources and indicated that terrorist cases may be tried on a lower standard of evidence.

His remarks were met with widespread consternation within the legal community. The Labour peer Helena Kennedy QC described the home secretary as a "shameless authoritarian" and called his ideas "an affront to the rule of law".

Last Thursday Britain's most senior judges ruled that there were very few cases where material was so sensitive that defendants should not hear it.

Lord Bingham of Cornhill, Lord Woolf, Lord Hope of Craighead, Lord Walker of Gestingthorpe and Lord Carswell said, "the golden rule is that full disclosure should be made". They said the appointment of special counsel should "always be exceptional, never automatic; a course of last and never first resort".