MR JUSTICE BURTON
Approved Judgment
perspective of the party or parties whose interests are not
otherwise represented).”
9.
As the Tribunal had had the benefit of very full legal arguments on assumed facts at
the open hearing, we gained a full understanding of the case as fully canvassed
between counsel by reference to more than 140 legal authorities, including a
substantial number of decisions of the ECtHR. We were and remain satisfied that
the Tribunal thus fully appreciated the nature of the Claimants’ case, and in any
event that it could be and was assisted by the full, perceptive and neutral
participation at the closed hearing of counsel to the Tribunal.
10.
In their written submissions Counsel to the Tribunal put forward the following
conclusions for consideration by the Tribunal:
“19.1 The role of counsel to the Tribunal is in principle distinct
from that of Special Advocate. The function of the former is to
assist the Tribunal by performing such functions as he or she is
directed by the Tribunal to perform. The precise roles played
by counsel to the Tribunal may therefore vary depending on the
circumstances.
19.2 However. in the present circumstances, there is a broad
measure of agreement between the Claimants and the
Respondents that counsel to the Tribunal can best assist the
Tribunal by performing the following roles: (i) identifying
documents, parts of documents or gists that ought properly to
be disclosed;. (ii) making such submissions to the Tribunal in
favour of disclosure as are in the interests of the Claimants and
open justice; and (iii) ensuring that all the relevant arguments
on the facts and the law are put before the Tribunal. In
relation to (iii), the Tribunal will expect its counsel to make
submissions from the perspective of the Claimants’ interests
(since the Respondents will be able to make their own
submissions). If the Tribunal decides to receive closed oral
evidence from one or more of the Respondent’s witnesses, it
may also direct its counsel to cross-examine them. In practice,
the roles performed by counsel to the Tribunal at this stage of
the current proceedings will be similar to those performed by a
Special Advocate in closed material proceedings.
19.3 If, at the closed hearing, the Tribunal concludes that the
closed material relied upon by the Respondents could not be
properly be made open, there will be no need for any more than
one closed hearing: counsel to the Tribunal will be able to
make submissions on the closed material. If, on the other hand,
it concludes that the closed material relied upon by the
Respondents could be disclosed to the parties. it will invite the
Respondents to consent to such disclosure. If the Respondents
agree, it will afford the parties an opportunity to make open
submissions on the disclosed material. If the Respondents
decline, it will give directions for [a further] open hearing . . . ”