Blurring the Civil-Criminal Divide for Process Rights: Closed Material Procedures and the Curious Character of Preventive Security Measures

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Abstract:

The procedures states should adopt in detaining suspected terrorists have been the subject of intense debate particularly in the area of security intelligence disclosure. In Canada, suspected terrorists who are not citizens may be subject to detention pursuant to a security certificate, which is a civil measure and thus applies civil law processes. Some have criticised the placement of security certificates and their United Kingdom equivalents within the civil domain arguing that the consequences of these measures, namely a deprivation of life, liberty and security rights, are of a criminal character and thus more stringent process rights should apply to ensure that rights are respected. Limited disclosure involving secret evidence, in particular, has been criticised for violating the suspect's right to know the case. This article considers the relevance of civil or criminal domain placement to the applicable process rights and examines the current dilemma that has arisen in cases where there is secret evidence and suspects are provided with something less than full disclosure.

Keywords: DISCLOSURE; PREVENTIVE SECURITY MEASURES; PROCESS RIGHTS; RIGHT TO KNOW THE CASE

Document Type: Research Article

DOI: http://dx.doi.org/10.5235/09615768.24.1.1

Publication date: March 1, 2013

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  • Until 2007 the King's Law Journal was known as the King's College Law Journal. It was established in 1990 as a legal periodical publishing scholarly and authoritative Articles, Notes and Reports on legal issues of current importance to both academic research and legal practice. It has a national and international readership, and publishes refereed contributions from authors across the United Kingdom, from continental Europe and further afield (particularly Commonwealth countries and USA). The journal includes a Reviews section containing critical notices of recently published books.
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