Secret Evidence and the Rights to Fair Trial and Due Process – How Far Is Too Far? Analyzing Competing Interests in the Wake of the War Against Terror and Immigration

With the onset of terrorism across the world, secrecy is a pressing challenge that seeks to protect the sensitive information and capabilities of a state. This comes at the price of expediency over the administration of justice. The delicate balance between state security and human rights has been debated over for decades. Contextually, this thesis attempts to interact with this great debate from the lens of international law to analyze the controversial issues it raises. It seeks to identify the central question, where exactly the line is to be drawn between the state’s ability to retain information that it deems as critical to national security and upholding fundamental guarantees of individuals to due process and fair trial. The findings of this thesis clarify that justice requires the use of secret evidence to be ended because a balancing exercise would always result in favour of the state. Abundance of literature documents the perils of executive bodies bulldozing judicial processes in the overriding interests of ‘national security’, particularly with respect to terrorism and immigration proceedings. Some states have introduced a system of a special advocates that comes with its own problems.

The thesis attempts to incorporate an analysis of the theoretical underpinnings that argue both in favour of and against the use of secret evidence in trials. There is no denying the importance of either, for at one end the rights of an individual are at stake and at the other, the integrity of the state and protection of its people. While most of the debate surrounding secret evidence centers on a balancing exercise of the competing interests, this thesis lays the landscape for doing away with the use of secret evidence. Moreover, in analyzing the rulings of ECtHR in addition to the a comparative analysis of the approaches adopted in the United Kingdom, Canada and the USA, this thesis endeavors to identify best practices and see how international law standards are being applied in the domestic practice of these prominent players in the international community.