A/HRC/22/26 Equality of arms 36. The principle of equality of arms was also highlighted as critical to ensure respect for the right to fair trial in the counter-terrorism context. This principle requires that the same procedural rights are provided to all parties, unless distinctions are based on law and can be justified on objective and reasonable grounds, not entailing actual disadvantage or other unfairness to the defendant.14 It relates, notably, to a number of aspects of fair trial such as access to evidence, participation in the hearing, and effective legal representation. Discussions highlighted some of the challenges to this fundamental tenet of the right to fair trial, including the broad application of national security or ”State secrets” doctrine to prevent disclosure of information; the use of intelligence and secret information as evidence; and the use of anonymous witnesses. The use in some jurisdictions of “special advocates”, where the special advocate is not permitted – except under limited circumstances and with the permission of the court – to communicate with anyone after receipt of closed evidence, was highlighted as problematic rather than providing for a solution for the balancing of legitimate national security interests and the rights of the defendant to due process and a fair trial. The lack of adequate resources for such advocates, including research support by staff with appropriate language skills and security clearance, was also noted. Intelligence-led law enforcement and the use of intelligence 37. Discussions referred to concerns over the increased reliance on intelligence and the advent of “intelligence-led law enforcement”, which has contributed to the expansion of the authority of intelligence agencies, often without adequate consideration for the due process safeguards necessary to protect against abuses. Where the distinction between law enforcement and intelligence agencies has been blurred because intelligence agencies are endowed with powers normally reserved for law enforcement, such as the powers of investigation, arrest, detention, and interrogation, these powers must be exercised in compliance with the same standards as those applicable to law enforcement, in particular international human rights law. 38. Participants noted the tensions that inevitably arise in relation to the use of intelligence for trial purposes. Intelligence services operate on the principle that information should not be disclosed unless for compelling reasons, whereas trials operate on the basis of the need for full disclosure. Indeed, the use of confidential or anonymous evidence may violate the right to fair trial, unless such use is justified as required in order to pursue a legitimate aim, such as the protection of public safety or the maintenance of national security, and meets criteria including proportionality. Even where such circumstances exist, it was recalled that a defendant or respondent must always be provided with sufficient information so as to answer the case. Equally, where it is sought to introduce at trial intelligence information that has not been obtained in a manner consistent with human rights guarantees, the criminal procedure as a whole is undermined. Justice systems have to balance these tensions and courts – not the executive – must determine whether State secrecy claims are valid in the context of criminal trials. In any event, State secrecy should not be invoked in such a way as to prevent accountability or deny victims their right to effective remedy. 14 12 Human Rights Committee, general comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial, para. 13. The Committee has explicitly acknowledged that the principle is applicable to criminal and non-criminal proceedings alike.