On 3 March 2011, ICCT hosted an expert meeting on ‘The Use of Intelligence in Terrorism-related Court Proceedings’. The meeting provided the opportunity to deliberate on special procedures that allow for the use of intelligence information in cases against suspects of terrorist crimes. Participants focused on experiences in Canada, France, the Netherlands and the UK examining relevant concerns and questions about the effectiveness of these specific regulations, procedural guarantees and human rights. The meeting was chaired by Prof. Dr. Martin Kuijer (Free University of Amsterdam).
Firstly, Dirk van der Bel (National Public Prosecutor on Counter-Terrorism, Netherlands Public Prosecution Service) discussed the important role of the National Public Prosecutor on counter-terrorism. He elaborated upon the specific role of the National Public Prosecutor on counter-terrorism in the alignment between the various organisations involved in combating terrorism, in particular in those cases where criminal investigations and security service (intelligence) investigations have areas of overlap. Information that can be relevant for the investigation and prosecution of criminal offences –this is at the discretion of the Dutch General Intelligence and Security Service AIVD – can be provided by the AIVD to the Public Prosecutor’s office via an official written report. The National Public Prosecutor has the right to look into all underlying documents of the official report. This is not merely a power, but in practice more or less an obligation for the prosecutor.
The information in the official report may be used to initiate an investigation or as legal evidence. According to the interpretation of the Dutch Supreme Court (HR, 5 September 2006, Eik) and a ruling of the European Court of Human Rights (ECHR, 16 October 2001, O’Hara v. UK), the start of a criminal investigation must be based on a reasonable suspicion of guilt of a certain offence or on indications of a terrorist offence. Traditionally, there is a strict separation between the work of the security services and the prosecutor, who each work under their own legal regime. One important feature is the obligation on the Security Services to protect its sources, working methods and current knowledge level.
On the other hand, during a court case, it is the task of the prosecutor and the judge to protect the elementary guarantees of a criminal procedure, namely to review the accuracy of information serving as evidence. Despite the watertight separation between the tasks, powers and responsibilities of the organisations which are involved in combating violent political crimes, it is possible to have within the existing statutory – if necessary and expedient – an intensive information flow between the various organisations, van der Bel stated. For instance, the Dutch Act on Shielded Witnesses offers the opportunity to have officers of intelligence services in certain protected modalities heard by the Examining Judge. So far, the act has not been used in the Netherlands.
With regard to verifiable information, such as reports from phone- and email taps, recordings of confidential communications by means of technical equipment, video taps of surveillance and so on, there will be less of a problem to turn this information into evidence, van der Bel argued. Elie-Victor Renard (Deputy Bureau Chief, Division of Criminal Affairs, French Ministry of Justice and Liberties) elaborated on the French experience with the use of intelligence in criminal court cases. In France, the processing of intelligence in criminal proceedings is part of a larger counter-terrorism strategy of pre-emptive judicial action that aims at disrupting the logistics of terrorist organisations.
Many actors are involved in this counter-terrorism strategy. From the perspective of the overlap between investigatory powers and intelligence gathering, most striking is the role of the DCRI (Central Directorate for Internal Security), which at the same time fulfils the role of intelligence service and an investigatory department. The public prosecutor conducts preliminary investigations and may also initiate a judicial inquiry. This judicial inquiry is entrusted to a specialist investigating magistrate, who initiates all actions prescribed by the law that he considers necessary in order to reveal the truth. The District Court of Paris has a concurrent jurisdiction with respect to all regional jurisdictions for the proceedings of terrorist offences, which leads to almost all terrorism-related court proceedings being conducted in Paris. The French procedure in the investigation phase is written and secret but only with respect to the general public and the media. Once the formal investigation has commenced, the suspect has full access to the case file through his/her counsel.
A copy of the case file is delivered to the counsel on the first appearance of the suspect. Mr. Renard concluded that there are no specific procedures or legal provisions to the use of intelligence in legal proceedings, nor are there any specific provisions to protect intelligence in the criminal procedure code. The intelligence has no value as such unless it is corroborated by objective elements gathered judicially during the course of the investigation. Moreover, the standard rule applies that all the evidence has to be submitted and discussed before court during the trial. The investigating magistrate does not have a security clearance. He is thus not authorized to have direct access to classified information. Unauthorised access to classified information is moreover constitutive of a criminal offence. The access of the investigating judge to classified documents is controlled by an independent authority (Consultative Commission for National Defence Secret), to which the presiding judge may refer with a request for partial or total declassification of documents. Once a specific document is declassified by the authority that originally classified it, it is transmitted to the investigating judge and added to the case file. From that state on, the information is protected only by the secret of the investigation, but is known to the defendant and his counsel and will be made public during the trial. In case of violation of the main principles of fair trial, as well as other overarching principles such as respect for human dignity, respect for physical and mental integrity and respect for privacy, the means of proof will be dismissed during the investigation phase, or will not be examined by the court.
Honourable Ronald Atkey described the Canadian situation. In Canada, section 38 of the Canada Evidence Act requires participants in proceedings to notify the Attorney General if they are required, or expect, to disclose information that is considered “sensitive information” or “potentially injurious information.” Once notice is given, the information cannot be disclosed unless the Attorney General of Canada or the Federal Court authorises it. A designated Federal Court judge must hear the matter ex parte and give the Attorney General of Canada the opportunity to make submissions. The judge may authorise disclosure of the information, unless he or she determines that disclosure would injure international relation, national defence or national security. If the judge determines that one of these situations might occur upon disclosure, the judge will balance the competing public interests in disclosure and non-disclosure. The judge has the option to place conditions upon disclosure.
There are now 23 specially trained, security cleared Special Advocates appointed by the Minister of Justice under immigration and refugee protection legislation, stemming from all regions of Canada. Problematically, once the secret information is seen, the Special Advocate cannot communicate with other Special Advocates or counsel for the named person unless authorised by the judge. Special Advocates could however play an important role in negotiating with the government and formulating agreed statements of fact. Special Advocates could also negotiate the release of certain information or agree that the claim of secrecy is warranted. Finally, Atkey also highlighted the debate that is ongoing in Canada on the procedures, and pointed to the Air India Commission Report of Retired Justice John Major, who dedicated a chapter in the report to Judicial Procedures to obtain non-disclosure orders in individual cases. The British experience was set out by Rose-Marie Franton (Higher Court Advocate and Head of Counter-Terrorism Division Northern Office). She discussed the matter by analysing one of the largest terrorism trials that the UK had ever dealt with: ‘the Fertiliser Plot’, also known as Operation Crevice, during which the British utilised intelligence information in a terrorist trial. Operation Crevice, was born after a report indicated that there were terrorist cells operating in the UK. After several raids, 600 kg of fertiliser and a biscuit tin filled with aluminium powder were found; potential ingredients to make a bomb. There was a simultaneous arrest in Canada of a software engineer, for experimenting with remote-controlled detonators. It turned out to be an international plot including the UK and Canada, including suspects in the United States, Pakistan, Canada and the UK. In these countries, criminal court cases were held that resulted in the conviction in the UK of five men on grounds of conspiracy to build a massive homemade bomb from fertiliser on 30 April, 2004.
Following the four presentations, the floor was open for a panel discussion. One question put forward concerned the way in which France deals with the fact that secret evidence constantly needs to be disclosed to the defence but not to the public. Renard responded that there are no measures or laws to deal with this. If intelligence is too sensitive to be made public at trial stage, it will frankly not be used. In any case, the intelligence used in the beginning of the prosecution will be disclosed to the defence during the judicial inquiry.
ICCT Research Fellow Dr. Bibi van Ginkel asked the panellists to reflect on the special procedures established in other countries and consider whether there are particular aspects of the other systems discussed that may be useful in their country’s legal system. Van der Bel responded that the Special Advocate system is an interesting tool, specifically due to the security clearance. This clearance makes sure that all fundamental rights have been met. Renard did not see the appeal of the advocates with security clearance per se, but did agree that there is a role to be played by specialist advocates. It is vital to reinforce the rights of the defence while securing the prosecution, he concluded.
Two years ago, the Eminent Jurist Panel of the International Commission of Jurists released a report entitled “Assessing Damage, Urging Action”, in which it deals with the debate on accountable national security policies. In the chapter on the impact of terrorism and counter-terrorism on the criminal justice system, it deals particularly with the principle of an independent and impartial judiciary and with the question what constitutes a fair trial. The Eminent Jurist Panel concluded inter alia that states should take steps to ensure that the work of intelligence agencies is fully compliant with human rights law, and that the powers of intelligence and law enforcement should be separated and intelligence agencies should not in principle have the power to arrest, detain and interrogate.
During the Expert Meeting, it became clear that four different systems that all fulfill the above mentioned requirements nevertheless show major differences in the way intelligence information is introduced in the criminal procedure, and the extent to which disclosure is made possible, and to whom. These differences in procedures might raise questions when intelligence information originates from a third state, in which different regulations with regard to disclosure of information apply. The exchange of information and the accountability that arises from this fact will be a topic of further research and debate for ICCT later this year.