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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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Published: 2017
Institution: Swansea University
Degree level: Doctoral
Degree name: Ph.D
URI: https://cronfa.swan.ac.uk/Record/cronfa41146
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first_indexed 2018-07-27T13:33:21Z
last_indexed 2020-09-04T03:02:56Z
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fullrecord <?xml version="1.0"?><rfc1807><datestamp>2020-09-03T08:18:35.0073337</datestamp><bib-version>v2</bib-version><id>41146</id><entry>2018-07-27</entry><title>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</title><swanseaauthors><author><sid>204b28df07293220bed218c3f142f3e8</sid><ORCID>NULL</ORCID><firstname>Katy E.</firstname><surname>Vaughan</surname><name>Katy E. Vaughan</name><active>true</active><ethesisStudent>true</ethesisStudent></author></swanseaauthors><date>2018-07-27</date><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)&#x2019; 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&#x2019;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&#x2019;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.</abstract><type>E-Thesis</type><journal/><publisher/><keywords/><publishedDay>31</publishedDay><publishedMonth>12</publishedMonth><publishedYear>2017</publishedYear><publishedDate>2017-12-31</publishedDate><doi>10.23889/Suthesis.41146</doi><url/><notes/><college>COLLEGE NANME</college><department>Law</department><CollegeCode>COLLEGE CODE</CollegeCode><institution>Swansea University</institution><degreelevel>Doctoral</degreelevel><degreename>Ph.D</degreename><apcterm/><lastEdited>2020-09-03T08:18:35.0073337</lastEdited><Created>2018-07-27T12:20:16.0959460</Created><path><level id="1">Faculty of Humanities and Social Sciences</level><level id="2">Hilary Rodham Clinton School of Law</level></path><authors><author><firstname>Katy E.</firstname><surname>Vaughan</surname><orcid>NULL</orcid><order>1</order></author></authors><documents><document><filename>Under embargo</filename><originalFilename>Under embargo</originalFilename><uploaded>2018-09-14T16:52:03.2930000</uploaded><type>Output</type><contentLength>2101939</contentLength><contentType>application/pdf</contentType><version>E-Thesis &#x2013; open access</version><cronfaStatus>true</cronfaStatus><embargoDate>2023-09-14T00:00:00.0000000</embargoDate><copyrightCorrect>true</copyrightCorrect></document></documents><OutputDurs/></rfc1807>
spelling 2020-09-03T08:18:35.0073337 v2 41146 2018-07-27 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 204b28df07293220bed218c3f142f3e8 NULL Katy E. Vaughan Katy E. Vaughan true true 2018-07-27 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. E-Thesis 31 12 2017 2017-12-31 10.23889/Suthesis.41146 COLLEGE NANME Law COLLEGE CODE Swansea University Doctoral Ph.D 2020-09-03T08:18:35.0073337 2018-07-27T12:20:16.0959460 Faculty of Humanities and Social Sciences Hilary Rodham Clinton School of Law Katy E. Vaughan NULL 1 Under embargo Under embargo 2018-09-14T16:52:03.2930000 Output 2101939 application/pdf E-Thesis – open access true 2023-09-14T00:00:00.0000000 true
title 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
spellingShingle 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
title_short 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
title_full 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
title_fullStr 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
title_full_unstemmed 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
title_sort 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
author_id_str_mv 204b28df07293220bed218c3f142f3e8
author_id_fullname_str_mv 204b28df07293220bed218c3f142f3e8_***_Katy E. Vaughan
author Katy E. Vaughan
author2 Katy E. Vaughan
format E-Thesis
publishDate 2017
institution Swansea University
doi_str_mv 10.23889/Suthesis.41146
college_str Faculty of Humanities and Social Sciences
hierarchytype
hierarchy_top_id facultyofhumanitiesandsocialsciences
hierarchy_top_title Faculty of Humanities and Social Sciences
hierarchy_parent_id facultyofhumanitiesandsocialsciences
hierarchy_parent_title Faculty of Humanities and Social Sciences
department_str Hilary Rodham Clinton School of Law{{{_:::_}}}Faculty of Humanities and Social Sciences{{{_:::_}}}Hilary Rodham Clinton School of Law
document_store_str 0
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description 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.
published_date 2017-12-31T03:52:26Z
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score 11.013731

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