The Right to a Fair Trial in the Context of Counter-Terrorism: The use and suppression of sensitive information in Australia and the United Kingdom

Abstract

In the recent fight against terrorism Western liberal democracies have significantly expanded pre-emptive measures, such as inchoate and preparatory offences or control orders. As these measures rely increasingly on the use of sensitive information, their application poses a dilemma. On the one hand, sensitive information may be necessary as evidence in an open court to justify the coercive measure or demonstrate the innocence of the suspect. On the other hand, states are reluctant to disclose such information where there is a risk to national security, preferring either to supress the information or to use it in secret. Such practices, however, may seriously violate the principle of fairness - and its attached individual right to a fair trial - a principle sitting not only at the core of the criminal justice system, but also forming part of the rule of law and democracy itself. The thesis poses the questions of what limitations are acceptable to the right to a fair trial, and what safeguards are necessary when states allow the suppression or use of sensitive information in criminal and related proceedings.

The thesis is therefore concerned with finding an appropriate judicial methodology for addressing the dilemma in court. It argues that without a proper process (often generally described as balancing), minimum standards of fairness are more likely to be lowered due to security pressures. Principles, however, which emphasise the right to a fair trial and require justifications for any limitation in the interest of national security are capable of retaining higher standards. Hence the thesis suggests that while what is fair must be decided in the particular circumstances, what needs to be taken into consideration in order to achieve fairness can be defined.

By comparing the case law from Australia and the United Kingdom, the thesis then offers an in-depths analyses of various degrees of balancing and principles when dealing with sensitive information, as well as the dynamics and interaction that accompany the two approaches between the branches of government. The two countries are particularly suitable for such an enquiry as they share a legal heritage, but have diverged increasingly over the last decades in how to protect human rights. While the thesis generally favours a principled approach as now predominantly applied in the UK, it does not simply propose a legal transplant for Australia, which so far has rejected any legislation including principles. Rather the comparison points out the reasons why Australian judges behave differently and challenges the Australian Parliament to amend the relevant legislation in accordance with its own values in order to retain high standards of fair trial protection in proceedings dealing with sensitive information.