8.15Our consultation with the Police and security and intelligence agencies suggests that they are concerned that, if a search warrant is obtained on the basis of national security information and is later challenged, the information will need to be disclosed. The NZSIS and GCSB stated in their submission that:
A mechanism is also required to protect the information if a warrant is challenged, including the ability to redact the application for the warrant. Any judicial review of the warrant may need to be conducted using court procedures designed for handling national security information with the assistance of the special advocate.
Other submitters generally agreed that this is an example of an area where closed procedures may be justified.
8.17We understand that judges in the High Court currently use counsel assisting the court when dealing with reviews of warrants where material is not disclosed. Our recommendation would formalise this arrangement in respect of national security information and make it clear that a special advocate should be used.
8.18We have considered whether there is also a case for reform at the initial stage of issuing a warrant. We have decided against this for the following reasons. First, a search warrant application is always ex parte so does not raise the same concerns about full disclosure in open court as other proceedings to which our reforms would apply. Second, the Search and Surveillance Act does not require that all information relevant to a search warrant application be released, only that the grounds be stated in “reasonable detail”. As a matter of interpretation, it would be open to an issuing officer to issue a warrant based on intercepted material received from security and intelligence agencies and presented in such a way as to avoid disclosing key capabilities or other details that might prejudice security interests. We are therefore of the view that there is not a sufficient need to change the Search and Surveillance Act to allow for warrants to be issued using a different process when national security grounds are being relied on.
8.19In our view, allowing search warrants issued on the basis of national security information to be challenged through a closed procedure rather than in open court is likely to be sufficient to address the concerns raised by the Police and security and intelligence agencies.
8.21We suggest that the use of a special advocate in a pre-trial hearing on the question of disclosure of national security information would provide greater protection for the fair trial rights of the accused. The special advocate would function in the same way as outlined above in R12 – R18 and below in R30 – R41 in that they would have access to the information and would present arguments on behalf of the accused, but they would not be able to disclose the information outside of the closed court room.
8.22The Criminal Disclosure Act provides that a claim for non-disclosure can be challenged on two grounds: that the reasons for non-disclosure do not apply or alternatively that the reasons apply but they are outweighed by reasons in favour of disclosure. In our view, the use of a special advocate to present arguments on both these points would help ensure that information that may be helpful to the accused is not withheld unnecessarily and would assist the judge in making an informed decision on the question of disclosure.
8.23We note that successful challenges to non-disclosure of national security information are likely to be rare. The exclusion of national security information would not usually be expected to prejudice the interests of the accused. It is highly unlikely that a prosecutor, subject to the ethical standards of criminal prosecution, would bring a charge knowing that there is exculpatory evidence that cannot be disclosed. Despite the rarity, we consider that providing for representation by a special advocate in a pre-trial hearing on disclosure is necessary to protect against the possibility, however slight, that the claim for exclusion of national security information cannot be justified.
8.24The NZSIS, GCSB and Police all considered that a special advocate should be used in the preliminary stages of challenging disclosure. The NZSIS and GCSB stated that:
A special advocate would be necessary in circumstances where a court is deciding an application on disclosure involving national security information. A special advocate will have the ability to make arguments on behalf of the accused as to whether the interests in favour of disclosure outweigh the interests protected by withholding the information, or whether the national security reasons claimed for non-disclosure do not apply at all. This would be consistent with the current practice under the Criminal Disclosure Act of relying on an amicus curiae on the rare occasion when material cannot be safely disclosed to the defence, for example when disclosure would reveal and informant’s identity.
8.25The New Zealand Bar Association said that there is:
…scope in criminal trials to use special advocates in the preliminary stages to assist in determining whether national security information should be withheld… A special advocate ought to be able to make submissions to the court as to whether that information can and should be withheld from the accused.
8.26The New Zealand Law Society also drew a distinction between the substantive trial and a preliminary hearing and did not object to the role for special advocates in a pre-trial hearing concerning disclosure.
8.27The Criminal Disclosure Act gives the trial judge the power to order that information be disclosed, and under section 30(3), the judge can impose conditions for disclosure. This could include, for example, requiring partial redaction of sensitive material and other orders that are available under the Criminal Procedure Act 2011.
8.28There is a statutory power in section 147 of the Criminal Procedure Act for the judge to dismiss a charge on his or her own motion or the motion of the prosecutor or defence. We consider that a charge should be dismissed if the exclusion of information will mean that the accused cannot have a fair trial. The combination of the judge’s duty to uphold fair trial rights under NZBORA and the power to dismiss a charge under the Criminal Procedure Act would mean this course of action is available. However, we suggest that the Criminal Disclosure Act should be amended to provide explicit guidance to both the trial judge and the prosecution that, if the proceedings cannot continue fairly without disclosure of national security information, they should be dismissed. We suggest this amendment could be given effect as a new subsection 30(4) of the Criminal Disclosure Act, which would provide that, if the court considers that there are compelling public interest grounds for non-disclosure but non-disclosure would prejudice the accused’s ability to present an effective defence, the charge should be dismissed under section 147 of the Criminal Procedure Act. We accept, however, that the court will necessarily have to exercise some judgement as to the timing of such a conclusion. In some cases, the evidence may be so obviously important that there could never be a fair trial; in others, it may be possible to conduct a fair trial without it.
8.29This is an area where the special advocate should also be able to present submissions, consistent with their role in advancing the interests of the accused person. That is, if after viewing the information the special advocate concludes that the accused will not be able to run an effective defence without referring to it but disclosure would risk significant prejudice to security interests, the special advocate may submit that the proceedings should be dismissed under section 147 of the Criminal Procedure Act rather than allowing them to be heard in the absence of crucial information.
8.30We also suggest that there should be an explicit power for the prosecutor to withdraw the proceedings without leave if the judge orders disclosure but the Crown remains of the view that the disclosure will damage national security. This would be analogous to provisions under section 94 of the Criminal Procedure Act under which a prosecutor may withdraw a charge if permission is given to a defendant to ask an undercover officer any question about their identity. In the case of national security information that is ordered to be disclosed, it would give the Crown the ultimate ability to prevent disclosure by ending the proceedings, which would in turn give agencies assurance that information will not be disclosed where there are serious risks.
8.32We note that, if proceedings are dismissed, it is deemed to be an acquittal under section 147(6) of the Criminal Procedure Act. In contrast, if proceedings are withdrawn, it would not bar future proceedings in respect of the same matter. This is an important distinction.
8.33We received comment from the senior judges that the “possibility of dismissal will also aid in the equality of arms issue, critical in this area”. The Police also stated that:
... an explicit ability to either withdraw or dismiss proceedings based on the need to protect security information would be helpful. It would give the court a clear indication that this option is available and a legitimate response to that situation.
8.34Balancing fair trial rights with the need to protect national security information relevant to criminal proceedings will inevitably be difficult, and there will be some cases where the only way to ensure that fair trial rights are preserved while information is protected is to discontinue the proceedings. We acknowledge that this may mean some cases that would otherwise be in the public interest to prosecute may be withdrawn or dismissed. We consider that this is the “least bad” option. The public interest in ensuring prosecutions can be completed is important but necessarily subordinate to the public interest in ensuring a fair trial. In some cases, it may also be subordinate to the public interests in protecting particular secure information. To provide for both these possibilities, we suggest that there should be clear provisions allowing proceedings to be dismissed or withdrawn.
8.36Section 64 of the Evidence Act currently provides a privilege for “informers”, who are not required to disclose information that might divulge their identity. An informer is defined as a person who has provided information to an enforcement agency “concerning the possible or actual commission of an offence”. This section is therefore not broad enough to protect the identity of sources who provide information on matters of national security or intelligence officers working for New Zealand or international intelligence agencies. Section 110 has a more general provision that allows for witness anonymity if the judge believes on reasonable grounds that the witness or any other person will be in danger if their identity is revealed. While this may be applicable to some potential witnesses on matters of national security, it would not cover a situation where the interest protected by anonymity is a national security interest such as avoiding prejudice to international relations.
8.37NZSIS and GCSB submitted in favour of a provision that would protect sources and intelligence officers. They stated that:
Intelligence officers deal with sophisticated global actors who have the means to understand and exploit national security information against national interests, and/or may pose a threat to safety. The protection of the identity, expertise and activities of intelligence officers are often inseparable.
8.38Other submitters who commented on this matter either agreed that anonymity provisions should be expanded or had no objections.
8.39We therefore recommend that the Evidence Act be amended to introduce anonymity protections for sources who provide information on matters of national security or intelligence officers working for New Zealand or international intelligence agencies. We consider that this could be an important tool to ensure that national security interests are protected while enabling those involved with security and intelligence agencies to give evidence in open court.
8.40This reform will apply in all proceedings. This is different to sections 64 and 110 of the Evidence Act, which are limited to criminal proceedings. We consider that the protections for intelligence officers and sources may be required in proceedings other than criminal, for example, in the review of administrative decisions, and that the section should therefore apply more generally.
8.41We have considered whether this protection should require a judicial order, as for anonymous witnesses, or whether it should be a privilege, as for informers. Both options have disadvantages. If a judicial order is required, this may not provide sufficient assurance for security and intelligence agencies. However, it is likely that a broad definition will be required to ensure protection for all categories of sources and intelligence officers, and we consider that judicial supervision can ensure that a broad definition does not lead to over-claiming. In addition, the interests at stake in anonymity for intelligence officers may often be public interests in national security rather than the private interests of the witness and therefore the waiver provisions that apply to privileges generally would not be suitable.
8.42Our preferred approach is to provide that a witness is not required to disclose their identity in the course of proceedings if the Director of GCSB or the NZSIS issues a certificate requiring identity to be supressed. However, a judge would be able to disallow anonymity on the application of the other party if revealing the identity was essential to prove the other party’s case. We suggest that, in civil cases, the judge should then be able to direct that the evidence be given in a closed hearing if this is required to protect national security interests that would be prejudiced by open disclosure of the witness’s identity. In criminal cases, the prosecution would have to choose whether to allow the identity to be disclosed or to withdraw the charge, as is currently the case for Police informers.