The first episode from the Public Law Seminar given by members of 1 Crown Office Row is now available for podcast download here or from iTunes under Law Pod UK. Look for Episode 13: Tackling radicalisation through the civil courts.
For ease of reference the following three posts set out the introductions to each of the presentations and the case citations. Click on the heading for PDF copies of each of the presentations.
Introduction
The Civil Courts have now been involved in cases of radicalisation brought before them by local authorities for very nearly three years (we are approaching the third anniversary of the first case). What was then innovative is now reasonably well-established (see President’s Guidance on Radicalization Cases in the Family Courts (8 October 2015) and the judgment of Hayden J in London Borough of Tower Hamlets v B [2016] EWHC 1707.
Concern was stirred originally by the spectre of significant numbers of people travelling to Syria to demonstrate their support for ISIS or the Al Nusra Front. This problem is not novel as 80 years ago Britain and Ireland were similarly fixated with the problem of volunteers departing for Spain to fight on both sides in the Civil War. A portrayal of the indoctrination of school age children to fight in that war even seeped into popular culture courtesy of Muriel Spark’s novel, The Prime of Miss Jean Brodie. The current situation is complicated by the relative ease of international travel, the tactics and targets used by extremists and the fact that the UK has already experienced domestic terrorism inspired by international examples.
The number of UK nationals travelling to Syria may have fallen but reports in 2016 of significant numbers of youths travelling from Kerala to Syria show that the problem has not fallen away and is truly international.
Case references in podcast:
A Local Authority v Y [2017] EWHC 968 (Fam) (27 April 2017)
The London Borough of Tower Hamlets v M and ors [2015] EWHC 869 (Fam)
R (Butt) v Home Secretary [2017] EWHC 1930 (Admin)
In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075
H (A Child) [2015] EWCA Civ 1284
Re KD (A Minor: Ward) (Termination of Access) [1998] 1 AC 806
London Borough of Tower Hamlets v B [2016] EWHC 1707
Re X (Children)(No3) [2015] EWHC 3651 (Fam)
A Local Authority v HB (Alleged Risk of Radicalisation and Abduction) [2017] EWHC 1437 (Fam)
Re C, D and E (Radicalization: Fact Finding) [2016] EWHC 3087
London Borough of Tower Hamlets v B [2016] EWHC 1707
Re C (A Child) (No 2) (Application for Public Interest Immunity) [2017] EWHC 692
X, Y and Z (Disclosure to the Security Service) [2016] EWHC 2400 (Fam)
R (Closed Material Procedure Special Advocates Funding) [2017] EWHC 1793 (Fam) (13 July 2017)
Re T (Wardship: Impact of Police Intelligence) [2009] EWHC 2440 (Fam)
A Chief Constable v YK, RB, ZS, SI, AK, MH (Sub nom Re A (Forced Marriage: Special Advocates) [2010] EWHC Fam 2438, [2011] 1 F.L.R. 1493 [92]
Re A (A Child) (Family Proceedings: Disclosure of Information) [2012] UKSC 60 [2013] 2 AC 66 at [34].
Secretary of State for the Home Department v MB [2007] UKHL 46, [2008] 1 AC 440, [2007] 3 WLR 681)
Re T (A Minor) (Wardship: Representation) [1994] Fam at 59
T v S (Wardship) [2012] 1 FLR 230
Re K (Children with disabilities; Wardship) [2012] 2 FLR 745
Re E (Wardship Order: Child in Voluntary Accommodation) [2013] 2 FLR 63
M (Children), Re [2016] EWCA Civ 937 (09 September 2016)
In Re C (Children) [2016] EWCA Civ 374 (14 April 2016)
In Re B (A Child) (Habitual Residence) (Inherent Jurisdiction) [2015] EWCA Civ 886
A Local Authority v Y [2017] EWHC 968 (Fam) (27 April 2017)
Re ZX, R (on the application of) v The Secretary of State for Justice [2017] EWCA Civ 155 (17 March 2017)
Since the establishment of the Special Immigration Appeals Commission in 1997 the use of secret evidence and closed hearings has expanded significantly, despite the vigorous opposition of civil liberties groups, lawyers and politicians. The inherent unfairness of such procedures need hardly be stated – they represent a departure from the principle of natural justice that all parties should be entitled to see and challenge the evidence relied upon against them and that justice should be dispensed in public.
The use of Special Advocates to represent a party’s interests in their absence at a closed hearing cannot eradicate that inherent unfairness, even in contexts where Article 6 of the ECHR requires open disclosure of a “gist” of matters that are kept closed on national security grounds. Once the closed material has been seen by the Special Advocate, there are severe constraints upon any communication with the litigant. The system was described by Lord Kerr in Al Rawi v Security Service thus:
It is, self evidently and admittedly, a distinctly second best attempt to secure a just outcome to proceedings. It should always be a measure of last resort; one to which recourse is had only when no possible alternative is available. It should never be regarded as an acceptable substitute for the compromise of a fundamental right such as is at stake in this case.
Case references in podcast:
SSHD v JJ & ors [2008] 1 AC 385
AF (No 3) [2010] 2AC 269 Bank Mellat v HM Treasury [2014] AC 700
Al Rawi [2014] 2 WLR 791
ZZ (France) v SSHD [2016] 1 WLR 1187
Tariq v Home Office [2012] 1 AC 452 Kennedy v United Kingdom ) (2011) 52 E.H.R.R. 4
Rahmatullah & ors v MOD & ors [2017] EWHC 547 (QB)
R(XH) & ors v SSHD [2017] EWCA Civ 41 An application by Michael Gallagher for Judicial Review [2016] NIQB 95
K, A & B v SSD & FCO [2017] EWHC 830 (Admin) Ali v Birmingham CC [2010] UKSC10
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