Common law systems have also faced similar pressures with respect to witness protection and the protection of intelligence from disclosure to the accused. But use of anonymous witnesses and intelligence has been more difficult for them given restrictions on hearsay evidence and a stronger right to confrontation and cross-examination at trial. One common method that common law jurisdictions have used to limit disclosure obligations are public interest immunity proceedings, which allow prosecutors to apply to judges for non-disclosure orders. In England and Wales, the courts have stressed the need for judicial approval of such orders. In a 1993 case that overturned a terrorism conviction in part because the Crown had not made full disclosure, the Court of Appeal criticized the prosecution for acting ‘as a judge in their own cause on the issue of public interest immunity’ (R v Ward, 648). Although British restrictions on disclosure are subject to review by the European Court of Human Rights, the Court has stressed that the entitlement to disclosure of relevant evidence is not an absolute right, and can be outweighed to preserve the fundamental rights of another individual or to safeguard an important public interest(Edwards and Lewis v the United Kingdom, ¶ 46). Public interest immunity proceedings are also used in Australia, Canada, Israel and the United States to limit disclosure rights (Roach, 2010a; Kitai-Sangero, 292). In some cases, these proceedings are even conducted at least in part on an ex parte basis without full participation from the accused for fear of revealing the secrets. Another alternative that is available is to allow the accused’s interests to be represented by a special advocate, a security cleared counsel (R v H and C). In the United States, the Classified Information Procedures Act PL 96-456 allows prosecutors to obtain non-disclosure orders to protect national security interests. It embraces notions of proportionality by encouraging both the government and judges to provide the accused with disclosure of non-classified substitutes for disclosure of material that might if disclosed reveal confidential sources, harm ongoing investigations or breach promises of confidentiality made to other agencies. In some cases, the accused’s lawyer may be granted access to the secret material subject to receiving a security clearance and undertaking not to disclose the material to the accused and this procedure has been used in notorious terrorism cases including those of bin Laden and Zacarias Moussaoui (United States v bin Laden, 121; United States v Moussaoui). Like the British special advocate procedures, these procedures demonstrate how common law systems are willing to qualify the lawyer-client relationship thought to be fundamental to the adversary system in order to protect other important competing interests such as national security. They also underline how common law systems are prepared to limit the right to disclosure, albeit in a manner that employs nominally adversarial hearings and as such differs from the means used in civil systems where investigating judges and prosecutors place less emphasis on confrontation and can use unsourced intelligence in
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