mtbc | Secret evidence in legal cases

Over the last century an exclusionary rule has been established in American law whereby evidence is typically deemed inadmissible if obtained as a result of violating the Constitution. A few years ago it turned out that some in the Department of Justice were advised to use normal investigative techniques to recreate the information already known by classified means. That revelation gets a mention in last year's American Spies: Modern Surveillance, Why You Should Care, and What to Do About It by Jennifer Granick of Stanford.

Here in the UK, earlier this year we had the Supreme Court rule in what I'll call Haralambous to allow a secret basis for search warrants and the like. In Tariq we had a previous failed attempt to use the European Convention on Human Rights against secret evidence; a few months ago the European Court of Human Rights confirmed that judgment, being sufficiently satisfied that an advocate for Tariq had been given the opportunity to review and counter the evidence.

Last year I expressed disappointment that the Liberal Democrats don't make more of their civil liberties platform. After exiting the European Union I have little faith that the Conservatives will be at all restrained in further eroding human rights in the name of safety and order. I have not noticed the UK bearing a cultural scar analogous to the reaction to J. Edgar Hoover's efforts to uncover domestic Communists but I can at least hope that the new relationship with the EU will keep Her Majesty's Government bound by the ECHR.

While I can see that there would be concern over encouraging unconstitutional surveillance by allowing its rotten fruits to then be substituted by palatable equivalents, I guess that I find most bothersome the idea of a defendant facing accusations founded upon uninspectable evidence, special advocates notwithstanding.