A Comparison and Critique of Closed Court Hearings

Abstract

Another example of the recent trend of departure from traditional criminal due process requirements in the ‘terrorism era’ is the increased use of ‘closed court’ hearings in relation to the introduction of evidence considered particularly sensitive with respect to national security. Typically, the person affected by the proceedings, and their chosen legal adviser, are excluded from such a hearing. This has many effects on the conduct of the trial as typically envisaged. For the purposes of this article, I will focus on two main effects: (a) the person does not get access to the evidence being led against them, and (b) their ability to cross-examine witnesses being used against them is removed. These developments contradict long-established and fundamental characteristics of proceedings in a criminal law trial in common law systems, such as the open court principle and the adversarial nature of proceedings. They also contradict the right to confront accusers, a right traceable to Roman times, and a feature of the British system for more than four centuries. They call into question the fairness of the proceeding. This article highlights the latest case law developments in key jurisdictions around the world before critically appraising trends evident in the recent jurisprudence.