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[APPEAL] Proscription of Ever Wandering Souls
#27

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Determination on the admissibility of in camera evidence

Having heard the legal arguments presented by petitioner's counsel, by Cabinet's counsel, and by the Intelligence Coordinator, The High Court has reached the following conclusions in regards to the admissibility of in camera evidence.

The High Court is of the considered opinion that the relevant law in this matter is Article VIII of the Judicial Act, which reads as follows;
 
Article 8: Confidentiality

(1) By default, material submitted for a case shall be submitted alongside the case proceedings in a public venue.

(2) Material that is confidential and may harm regional security may be submitted to the Court, provided that the Court works with the corresponding authority to redact the information that may harm regional security.

(3) Material that is of a personal nature, such as as that which reveals personally identifiable information or which would otherwise unreasonably violate personal privacy, may be provided to the Court on a confidential basis, and published in a redacted form only if a reasonable person could not deduce the identity being protected.

These clauses cannot be read individually, but must be considered as a collectivity and in sequential order. Thus clause two, which deals with the submission and redaction of confidential material, must be considered in relation to clause one.

Clause one establishes that the default procedure for the submission of material is for it to be provided in a public venue. By establishing a default procedure of submission - that is to say, a standard procedure - clause one provides an implicit authorisation for non-standard procedures of submission. These non-standard procedures are then detailed in clauses two and three.

Clause two establishes the non-standard procedure for material "that is confidential and may harm regional security". The wording of this makes clear that the confidentiality and potential for harm are explicitly linked; material submitted under clause two must be both confidential and of potential harm to regional security. 

It may be logically deduced that the purpose of redaction is to remove any information that may harm regional security; this information must remain confidential, whilst information that is not of potential harm to regional security must be provided in a public venue. The determination of what constitutes harm to regional security is left entirely to the best judgement of the Court, as is the determination of the nature and extent of redaction.

The wording of clause two is imprecise as to exactly how this material may be submitted to the Court, but it does require cooperation between the Court and the "corresponding authority to redact the information that may harm regional security"; in this case, the Intelligence Coordinator. It is the opinion of the Court that this explicitly authorises in camera consideration of the submitted material by the Court, as without such there would be no means of making the required determinations.

Participation in this in camera consideration is implicitly limited to the Court and the corresponding authority; no outside party may participate or have access to the un-redacted material. In this particular case Cabinet's counsel has had access to the un-redacted material; this stems from the fact that said material was provided to the Cabinet by the Intelligence Coordinator, and forms the basis of the proscription of the petitioner. Cabinet's counsel has not had access to the the in camera consideration of the submitted material, nor has any other party outside of the Court and the corresponding authority. The participation of the corresponding authority has been limited to the provision of the submitted material; all discussions of the material and it's potential redaction have occurred solely within the Court, between Chief Justice Kringalia and Associate Justice Belschaft.

The Court has examined the submitted material in detail, and has considered the level of redaction that would be necessary to prevent harm to regional security. As the submitted material constitutes evidence provided by an extant and active source, anything that could allow this source to be identified would harm regional security. The Court thus has considered ways by which the source could be identified from the submitted material, and has concluded that the only way to prevent such identification is by the complete and total redaction of the submitted material.

As the public release of this redacted version of the submitted material would take the form of a blank document, the Court has determined that no such release will be ordered. The Court is bound to order the release of the un-redacted submitted material; in a situation where there is no un-redacted submitted material, there is nothing to release. Whilst ordering the release of a blank document may be required under the strictest possible reading of the law, it would also be absurd, and the Court is not in the practice of giving absurd instructions.
 
Belschaft
Associate Justice

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Messages In This Thread
RE: [APPEAL] Proscription of Ever Wandering Souls - by Belschaft - 08-26-2018, 02:35 PM
Opinion of the Court - by Kris Kringle - 09-12-2018, 09:10 AM



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