State Secrets and the Right to a Fair Trial, cont.

I have argued in an earlier post that the secrecy of information relevant to a civil or criminal court case creates serious problems under Article 6 ECHR and/or Article 14 ICCPR, but that it could potentially be justified if all possible steps short of disclosure are taken in order to alleviate the consequences for any trial of – reasonably ordered – classifications of information.

I return to this because the English Court of Appeal has yesterday (again) spoken on the issue, reviewing a number of relevant authorities (some of which had eluded me) and reaching much the same conclusion as I did: where all the appropriate safeguards (including the provision of special counsel to represent the absent private party in relation to material heard in closed session) are in place, it may be permissible to keep some classified information from a private party to a case: Secretary of State for the Home Department v MB [2006] EWCA Civ 1140, at paras. 69-86.

Needless to say, I agree.