A British Legal Brief

Attorney General The Attorney General (the character portrayed by Jim Broadbent in CLOSED CIRCUIT) is one of the Law Officers of the Crown. The Attorney General serves as the chief legal advisor of the Crown, and its government, in England and Wales.

Barrister and/or QC, and Solicitor

While the U.S. does not draw a distinction between lawyers as barristers or solicitors, there is one in the U.K.: barristers are specialists in advocacy and represent individuals or organizations. They are usually hired by solicitors to represent clients in court, as solicitors are attorneys who work on a case but do not participate in courtroom proceedings. In CLOSED CIRCUIT, Martin (played by Eric Bana) is a barrister, and is QC (Queen’s Counsel), while Devlin (played by Ciårán Hinds) is the solicitor who works with him on a regular basis. Barristers of at least 10 years’ good standing may apply to be designated QC, who are selected annually by the Ministry of Justice.

Special Advocate (SA)

A Special Advocate (one, Claudia, is portrayed on-screen by Rebecca Hall) is a barrister appointed to represent the interests of an individual/defendant (in the movie, Farroukh Erdogan, played by Denis Moschitto) in proceedings wherein at least part of the evidence or material is “closed [i.e., classified] material” that will only be presented in a “closed session.” Given that cases calling for a Special Advocate, or SA, often directly relate to national security, SAs have been subjected to rigorous vetting procedures by the Crown’s prosecution services to ensure that they pose no security risk if and when given highly confidential information.

Once a candidate is approved as a Special Advocate and given security clearance, they are registered for deployment by the Special Advocate Support Office, or SASO (pronounced “sass-o”). Whenever a case with a closed session is going to trial, the defendant is given a list of approved Special Advocates and asked to nominate one to be represented by. But it is the Attorney General who appoints Special Advocates to cases.

SASO will then give the SA what is known as the “open material” in the case, i.e., all the non-classified material which the defendant himself will see; the SA is able to meet with the defendant and discuss it. Subsequently, the SA will be given the closed material, which is the sensitive and classified material not given to the defendant. After the SA has been given that closed material, the SA cannot contact the defendant directly, so as to prevent any possibility – indirectly or otherwise – of the SA revealing any of it to the defendant. As the SA is prohibited from having any direct contact with the defendant, all communication must be done through SASO, including with the defendant’s lawyers, to further ensure that there is no inappropriate disclosure.

The SA’s role is to represent the interests of the defendant in the closed parts of the proceedings. An SA will, for example, cross-examine witnesses about the basis of their statements. The SA will be present for all of the case-related “open sessions” – at which the defendant can be present, as well as members of the public. During these, the SA will be able to see how the case is being set forth by the defendant’s lawyers but will not be able to discuss the evidence in the case with the defendant’s lawyers directly; that must be done through SASO. In CLOSED CIRCUIT, Claudia, in her capacity as SA, is prohibited from discussing the case’s evidence with the defendant’s barrister, Martin.

Closed Sessions

A Special Advocate is vital because otherwise the defendant would have no one representing their interests in the closed session, which is a hearing held in the presence of the judges and security-cleared personal and lawyers, often including the government’s own prosecution lawyers.

During these sessions, classified evidence will be considered that is often national security-sensitive. A closed session may also be necessary because the government is reliant on evidence which it cannot reveal publicly, or to the individual on trial, but which is central to its case; without the closed session, the government would not be able to continue its prosecution.

Terrorism cases are flashpoint examples where the prosecution is likely to harbor highly sensitive information – perhaps relating to the U.K.’s intelligence operations with or within foreign countries – that it will not be disclosing to certain players in the trial, much less to the public. SAs and prosecution lawyers alike are under increased pressure to not compromise U.K. intelligence operations and surveillance methods, and to not put at risk of exposure officers of the British national security agencies MI5 and MI6 and/or these agencies’ witnesses and covert human intelligence sources, known as CHIS.

Several U.K.-based organizations operate websites that provide regular updates on court proceedings. In light of the advances in technology enabling access to previously unattainable information, the evolution of the Special Advocate has been accelerated as a countermeasure and as a safeguard for Britain’s courts systems. There is also a financial component: escalated terror threats have led to higher courts expenditures.

In closed sessions, British national security agents are able to present evidence without any fear of its becoming publicly known; in cases, they will often demur in discussing matters in open sessions, opting instead for closed sessions where they will give far more complete accounts. A judge can try to press them to answer as much as possible in the open sessions, as can an SA: if material is discussed in closed session which could properly be dealt with in open session – i.e., with no national security risk in the defendant’s learning of the material – then the SA will argue for that non-classified material to be dealt with in the open sessions.

The SA cannot ask the defendant questions that would touch on details of closed material. The SA has an opportunity to make final submissions and arguments to the judge (in CLOSED CIRCUIT, Cameron Fischer, portrayed by Kenneth Cranham) after all of the closed sessions relevant to the case have taken place.