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| Treasury presses supreme court to consider secret evidence in bank case | Treasury presses supreme court to consider secret evidence in bank case |
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| The Treasury is urging the supreme court to consider secret evidence for the first time when it hears an appeal by an Iranian bank against sanctions imposed on it by the British government. | The Treasury is urging the supreme court to consider secret evidence for the first time when it hears an appeal by an Iranian bank against sanctions imposed on it by the British government. |
| The politically sensitive case involving Bank Mellat and its shareholders highlights the legal dilemmas raised by so-called closed material procedures and how appeal courts deal with an expanding library of secret judgments that are never shown to claimants. | The politically sensitive case involving Bank Mellat and its shareholders highlights the legal dilemmas raised by so-called closed material procedures and how appeal courts deal with an expanding library of secret judgments that are never shown to claimants. |
| Lawyers for the bank say the government is trying to force the court to close its doors to the public and hold a partially secret hearing from which they will be excluded. | Lawyers for the bank say the government is trying to force the court to close its doors to the public and hold a partially secret hearing from which they will be excluded. |
| The human rights organisation Liberty, which has intervened in the case and opposes the expansion of secret courts, says special advocates – who have security clearance to hear sensitive evidence – have already been appointed. It fears that if an earlier secret judgment is read the appeal will inevitably turn into a closed session. | The human rights organisation Liberty, which has intervened in the case and opposes the expansion of secret courts, says special advocates – who have security clearance to hear sensitive evidence – have already been appointed. It fears that if an earlier secret judgment is read the appeal will inevitably turn into a closed session. |
| The supreme court has always stressed the importance of open justice and believes it will not have to hold a secret hearing. Set up in 2009 as the UK's highest appeals panel, it is the only court in the country that routinely televises its hearings. The request by Treasury solicitors that the justices, as its judges are known, examine the earlier secret judgment is a challenge to the traditions of the court. | The supreme court has always stressed the importance of open justice and believes it will not have to hold a secret hearing. Set up in 2009 as the UK's highest appeals panel, it is the only court in the country that routinely televises its hearings. The request by Treasury solicitors that the justices, as its judges are known, examine the earlier secret judgment is a challenge to the traditions of the court. |
| A statement from the supreme court said: "As was the practice in the House of Lords, and in common with all other courts, the justices of the supreme court have always been reluctant to consider closed material given the important principle of open justice." | A statement from the supreme court said: "As was the practice in the House of Lords, and in common with all other courts, the justices of the supreme court have always been reluctant to consider closed material given the important principle of open justice." |
| The case was due to be heard last summer but was withdrawn at short notice after the Treasury belatedly asked the court to consider a secret judgment given against Bank Mellat in the lower courts after hearing intelligence evidence. | The case was due to be heard last summer but was withdrawn at short notice after the Treasury belatedly asked the court to consider a secret judgment given against Bank Mellat in the lower courts after hearing intelligence evidence. |
| The case will now proceed in March before seven justices. That so many will be involved is a sign of the significance of the case. The government's application has stirred up a swarm of legal and security problems, not least the difficulty of explaining how the supreme court can sit in secret after its own judgment in what is known as the al-Rawi case in 2011 in effect banned such procedures in civil cases. | |
| That landmark decision forced the government to introduce the justice and security bill, which will establish clearer legal foundations for expanding secret hearings in civil cases. The bill is about to enter its committee stage in the House of Commons after the Lords inflicted a series of defeats on the proposals, adding extra safeguards such as ensuring that judges rather than ministers have greater power in deciding whether cases should be heard in closed session. | |
| Bank Mellat, a privately owned Tehran-based finance house, has been appealing against a decision by the Treasury in 2009 to impose sanctions on it under the powers of the Counter-Terrorism Act. In June 2011 the then financial secretary to the Treasury, Mark Hoban, alleged in parliament: "Bank Mellat had provided banking services to a UN-proscribed organisation connected to Iran's proliferation sensitive activities, and been involved in transactions related to financing Iran's nuclear and ballistic programme." Bank Mellat has strongly denied the allegations. | |
| The earlier secret hearing in the Bank Mellat case occurred in the high court before the al-Rawi judgment changed the legal landscape. | The earlier secret hearing in the Bank Mellat case occurred in the high court before the al-Rawi judgment changed the legal landscape. |
| Sarosh Zaiwalla, the London solicitor who represents both the bank and a majority of its shareholders, said: "At the moment the Treasury solicitors are saying [the case] should be partially in secret." | |
| He has written to the supreme court objecting to the justices being allowed to see the earlier closed judgment and secret evidence that the bank had been prevented from seeing. It alleged that the evidence had been "fabricated by the intelligence agency MI5". | He has written to the supreme court objecting to the justices being allowed to see the earlier closed judgment and secret evidence that the bank had been prevented from seeing. It alleged that the evidence had been "fabricated by the intelligence agency MI5". |
| Zaiwalla said the shareholders claimed they had never "approved or authorised" the bank to take part in any nuclear or ballistic weapons programme in Iran. He said: "Dr Divandari, the chairman of Bank Mellat, has told me in Tehran that he can't believe that Britain is supposed to be a beacon of democracy and justice [since] he doesn't know what the evidence is against his bank." | Zaiwalla said the shareholders claimed they had never "approved or authorised" the bank to take part in any nuclear or ballistic weapons programme in Iran. He said: "Dr Divandari, the chairman of Bank Mellat, has told me in Tehran that he can't believe that Britain is supposed to be a beacon of democracy and justice [since] he doesn't know what the evidence is against his bank." |
| Under a closed material procedure, claimants in a case cannot see the detailed secret evidence against them. The Treasury declined to comment on whether it had asked the supreme court to read a secret judgment or proposed the justices might have to go into a closed material procedure. A spokesperson said: "We do not comment on cases where legal processes are ongoing." | |
| The supreme court said: "Should the need ever arise, the supreme court has procedures in place to handle closed material. As with all courts, this is a matter of operational requirements and a principle of good management. | The supreme court said: "Should the need ever arise, the supreme court has procedures in place to handle closed material. As with all courts, this is a matter of operational requirements and a principle of good management. |
| "At a relatively late stage before the previously scheduled hearing in the case of Bank Mellat, one of the parties indicated that they wished the court to consider a closed document. This in turn raised the issue of whether or not the supreme court has the power to consider closed material following the decision in al-Rawi. Given the importance of the issue, the appeal was relisted to allow a greater number of justices to sit on the appeal. That hearing will be held in public. | "At a relatively late stage before the previously scheduled hearing in the case of Bank Mellat, one of the parties indicated that they wished the court to consider a closed document. This in turn raised the issue of whether or not the supreme court has the power to consider closed material following the decision in al-Rawi. Given the importance of the issue, the appeal was relisted to allow a greater number of justices to sit on the appeal. That hearing will be held in public. |
| "At the hearing, the justices will consider whether they have the power to consider closed material. If they decide that they do have that power, we expect that they will then go on to consider whether they will exercise it. This will be dealt with in open court and we do not anticipate that there will be a closed hearing." | "At the hearing, the justices will consider whether they have the power to consider closed material. If they decide that they do have that power, we expect that they will then go on to consider whether they will exercise it. This will be dealt with in open court and we do not anticipate that there will be a closed hearing." |
| Corinna Ferguson, Liberty's legal officer, said: "This case illustrates the danger of using closed procedures in the normal courts. Considering a closed judgment would involve the supreme court itself going into closed session. I can't see how it can be done openly. It would be completely ludicrous for the supreme court – which only rules on matters of public importance – to hold a secret hearing in this way. There have already been discussions about how closed material should be handled by the court and whether court staff should have access to it." | Corinna Ferguson, Liberty's legal officer, said: "This case illustrates the danger of using closed procedures in the normal courts. Considering a closed judgment would involve the supreme court itself going into closed session. I can't see how it can be done openly. It would be completely ludicrous for the supreme court – which only rules on matters of public importance – to hold a secret hearing in this way. There have already been discussions about how closed material should be handled by the court and whether court staff should have access to it." |