E-Thesis 497 views
Part 2 of the Justice and Security Act 2013: the compatibility of closed material proceedings with Article 6(1) of the European Convention on Human Rights / Katy E. Vaughan
Swansea University Author: Katy E. Vaughan
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DOI (Published version): 10.23889/Suthesis.41146
Abstract
The use of closed material proceedings (CMPs), has proliferated since they were first introduced as an exceptional measure to deal with the use of secret evidence. This proliferation has occurred both across borders, and across contexts within the United Kingdom, in despite of the controversy that h...
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2017
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| Institution: | Swansea University |
| Degree level: | Doctoral |
| Degree name: | Ph.D |
| URI: | https://cronfa.swan.ac.uk/Record/cronfa41146 |
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| Abstract: |
The use of closed material proceedings (CMPs), has proliferated since they were first introduced as an exceptional measure to deal with the use of secret evidence. This proliferation has occurred both across borders, and across contexts within the United Kingdom, in despite of the controversy that has surrounded their use. Part 2 of the Justice and Security Act 2013 (JSA) significantly extended the availability of CMPs to all civil proceedings. The introduction of the JSA provoked strong criticisms with regard to both the perceived unfairness of CMPs, and that such an extension of their use cannot be justified. This thesis provides a response to those claims. In addition, this thesis argues that the cross-border and cross-context policy transfer of CMPs to date demonstrates the need to subject these exceptional measures to a rigorous analysis before such policy transfer occurs. This thesis contends nuances can be lost in translation, with the danger of adopting a system that provides a lower level of rights protection. Consequently, this thesis undertakes a rigorous analysis of CMPs under Part 2 of the JSA, and their compatibility with the right to a fair trial guaranteed by Article 6(1) of the European Convention on Human Rights (ECHR).The European Court of Human Rights (ECtHR)’ Article 6(1) jurisprudence provides the framework for the analysis of Part 2 of the JSA, therefore this doctoral research is rooted in the ECtHR and its interpretative principles. However, this thesis will illustrate that the existence of such a framework is insufficient due to tensions that exist between the principles which constitute that framework, and how these tensions are resolved effects the outcome of the case. In this sense, there is indeterminacy in the ECtHR’s case law. It is argued here that the tensions need to be reconciled in a way that ensures the level of rights-protection is enhanced rather than restricted.This thesis will demonstrate that the use of CMPs within the scheme of the JSA is potentially incompatible with the ECHR, however, in line with the ECtHR’s jurisprudence the outcome is ultimately dependent on the circumstances of each individual case. This is in itself inherently problematic given the innate secrecy of CMPs. This demonstrates the challenges posed by secrecy, and the concomitant importance of judicial control over the use of CMPs, and general oversight mechanisms. |
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| College: |
Faculty of Humanities and Social Sciences |