Non-disclosure of information in the prosecution of preventive detention regimes

Abstract

Preventive detention has been adopted as a measure of counter-terrorism law in many jurisdictions. It has been authorised under the Security Certificate regime in Canada and the Control Order regime in United Kingdoms. Since their adoption, the two regimes have become objects of much debate. The reason is that they both legalised the use of secret evidence and secret hearings in their prosecution. The issue arose whether the non-disclosure of such information in a judicial review to decide the reasonableness of a control order/a security certificate deprives terrorist suspects from a fair hearing. This paper explores that question by analysing two landmark cases in the United Kingdom and Canada: AF (No 3) and Charkaoui I. The paper’s thesis is that the findings of the courts in these two cases are reasonable. However, the alternative to full disclosure as adopted by both the United Kingdom and Canada – the Special Advocate model – is currently too limited. This paper subsequently offers solution for this: the judges should have a more active role in investigating the relevant facts of the cases.