High Court Ruling Normalises Secret Evidence use in Fahad Ansari Case

London — The High Court has ruled that the police do not have to provide national security lawyer Fahad Ansari with even a basic summary of the secret case relied upon to justify his stop under Schedule 7 of the Terrorism Act 2000 and the seizure and download of his work phone. In practice, this means that even lawyers can be subjected to counter-terrorism powers, and have legally privileged communications extracted and examined by the state and still be denied the most basic element of due process - the right to know the case against them.

Over the past two decades, powers introduced in the name of counter-terrorism have steadily eroded the principles that once defined open justice. What began with emergency legislation in Ireland was given a permanent footing with the Terrorism Act 2000. Over a quarter of a century later, secret evidence has gradually expanded into wider areas of law, allowing the state to rely on undisclosed intelligence to justify its actions while shielding its reasoning from scrutiny.

Today’s ruling confirms that even when the state seizes the phone of a practising solicitor - containing years of confidential communications and legally privileged material - it can justify that intrusion entirely in secret. The idea that a person must be able to see and challenge the case against them has been replaced by a procedural fiction: a special advocate who is allowed to see the material but cannot take instructions from the person whose rights are at stake. At an earlier hearing, counsel for the police sought to explain the detention and interrogation of Fahad by drawing a distinction between an ordinary solicitor and a solicitor for a proscribed organisation - a claim that contradicted her written submissions that such reasoning would be entirely inappropriate. Although she withdrew the comment after the judge pointed out the inconsistency, the clear inference to be drawn is that Fahad was targeted because of his representation of Hamas.

This decision should alarm the entire legal profession. Secret evidence is the hallmark of systems where state power operates without meaningful accountability. The acceptance of closed material procedures involving secret evidence and state approved special advocates has already reshaped British justice in ways that would once have been unthinkable. The rule of law cannot survive if lawyers are expected to accept proceedings in which the state presents accusations that the affected person is never allowed to see.

Anas Mustapha, Head of Public Advocacy at CAGE, said:

“Secret evidence has always been the thin end of the wedge. Once courts accept that the state can accuse someone without revealing the accusation, the foundations of justice begin to collapse. Fahad Ansari refused to legitimise that system by participating in it, and today’s judgment shows exactly why. The legal profession now faces a serious question: whether it will continue to accommodate secret courts through mechanisms like the special advocate system, or whether it will begin the difficult work of rolling back a process that has steadily eroded open justice for more than two decades.”