Criminal law update:

Facts: The European Court of Human Rights (ECtHR) determined the circumstances when it is appropriate to conduct proceedings in a closed court, particularly when neither the person(s) detained nor their lawyer were present for the submission of confidential information supporting the line of investigation being conducted by a national authority.

Sher and others involved an application for warrants of further detention on expiry of the initial 48 hours permitted under the Terrorism Act (TA) 2000. In the event, the applicants were detained for a total of 13 days, but were subsequently released without charge. The application to the ECtHR was made on the basis that there had been a violation of the applicants’ right to take proceedings to challenge the lawfulness of their detention as set out in article 5(4) of the European Convention on Human Rights (‘ the convention’ ).

Decision: In considering the application, the court stated that the threat of an imminent terrorist attack had justified restrictions on the rights of the applicants under article 5(4), since the investigation surrounded terrorism, which was in a special category. In those circumstances, it could not be said that the use of a closed court hearing in order for confidential sources of information which supported the authorities’ line of investigation was precluded by article 5(4).

In TA Schedule 8, detailed procedural rules were set out clearly, which enabled applicants to know the nature of the allegations against them and, with legal representation, to refute any allegations and to participate effectively in proceedings concerning their continued detention.

In this case, reasons had been given to both the applicants and their legal advisers concerning why certain information had been withheld. Moreover, the withheld information was limited to further enquiries which were to be conducted and those had been submitted to a judge. In closed session, the judge had been able to ensure that no material had been withheld unnecessarily from the applicants, and determine, in their best interests, whether there were any reasonable grounds for believing that further detention was required.

In any case, there was power for the judge to appoint a special advocate if such a measure was considered necessary to ensure the fairness of the proceedings. The applicants had not made such a request.

The ECtHR held that the right of these applicants to take proceedings to challenge the lawfulness of their detention did not preclude the use of closed court hearings without their presence or that of their legal advisers. As a result, there had been no violation of article 5(4).

Comment: This is another example of a realistic approach taken by a European court when dealing with alleged terrorist offences. Sher and others highlights the emphasis placed by the court in balancing the need for proper investigations to be taken in line with relevant legislation, which while protecting the rights of applicants, do not hinder the proper investigation of terrorist offences. In particular, while open justice is a fundamental principle, the interests of justice prevailed in this case which, in the event, did not result in a breach of the convention. Indeed, it will be noted that the applicants in this case were released without charge.