The rise of the secret trial: Closed Material Procedures one year on – Lawrence McNamara

Justice and SecurityLast week Justice Secretary Chris Grayling reported on how often closed material proceedings (CMPs) have been sought under the Justice and Security Act 2013 (JSA), as he is required to do annually under the Act. As the first and only official consolidated presentation of how the new CMP regime is being used, this two-page written ministerial statement warrants close attention.

The Secretary of State’s report provides only numbers. In the Bingham Centre’s Review of the First Report by the Secretary of State, we have tried to match cases to those numbers and, when read in light of the cases, have found good reasons to be concern about the difficulty of verifying the accuracy of the report, the ways that CMPs are being used, and the adequacy of the reporting requirements.

What are the reporting requirements?  

Section 12 of the JSA requires the Secretary of State to make an annual report stating how often in the preceding 12 months applications for section 6 declarations for CMPs have been made, granted and revoked, and how many of the associated final judgments are closed judgments and how many are not closed. Section 12(3) states that the report may also include other information as the Secretary of State deems appropriate.

What was reported?

The report was published on 22 July 2014, covering the period 25 June 2013 (when the JSA came into force) to 24 June 2014. It took the form of a table accompanied by two footnotes and, excluding categories it reported that:

  • Number of times the Secretary of State has applied for a section 6 declaration that a CMP application may be made:   5 (*)
  • Number of those applications granted (i.e., the number of declarations that a CMP application may be made): 2 (**)
  • Number of final judgments made (regarding the application for a declaration) that are closed judgments: 1
  • Number of final judgments made (regarding the application for a declaration) that are not closed judgments: 1

(*) Two applications each covered two claimants; one application covered five claimants; and the remaining two applications each covered one claimant.

(**) One declaration covered two claimants; one declaration covered one claimant; and the remaining three declarations are outstanding (within the timeframe of this report).

This tells us that (to 24 June 2014) five applications had been made and, of those, two were granted and decisions had yet to be made in the remaining three. It tells us that there was one open final judgment and one closed final judgment. Presumably, these must relate to the declaration applications that have been granted. Helpfully, and presumably included pursuant to s 12(3), the Secretary of State has provided a limited breakdown showing about the number of claimants affected.

What cases does the report refer to? It is not that easy to tell.

The applications for a declaration

Five applications for a declaration are readily identifiable. The first three are straightforward.

  1. CF & Mohamed v Secretary of State for the Home Department [2013] EWHC 3402 (QB)
  1. McGartland and another v Attorney General [2014] EWHC 2248 (QB).
  1. R (in the application of Sarkandi and others) v Secretary of State for Foreign and Commonwealth Affairs [2014] EWHC 2359 (Admin)
  1. Youssef v Secretary of State for Foreign and Commonwealth Affairs [2013] EWCA Civ 1302

This appeal against dismissal of a claim for judicial review of a decision to include the claimant on a sanctions list is a little more complex. It is beyond doubt that an application for a section 6 declaration was made in this case: the Court of Appeal stated at paragraph 44 that ‘on 18 July [2013] an application was issued under s 6(1) of the Act for a declaration.’ However, the application for a declaration was not considered as the appeal failed on other grounds. Certainly, however, an application was made and it should be included in the Secretary of State’s report.

  1. Terence McCafferty v Secretary of State for Northern Ireland (2012 No 360)

Although we have identified five cases where an application for a declaration was made, can we be sure these are these the five applications to which the Secretary of State is referring in the report?

It is difficult to know because, matching them against further information in the report about the declarations that were made, the cases above cannot be reconciled with the numbers in the report.

The section 6 applications for a declaration that were granted

The report states that two applications for a declaration were granted, one of which covered two claimants and the other covered one claimant.

Three of the five applications must surely be those in Sarkandi (five claimants), CF & Mohamed (two claimants) and McGartland (two claimants). A declaration was granted in CF & Mohamed, which would be the declaration which affected two claimants.

The first must be CF & Mohamed, which affected two claimants. What of the other two applications? We are looking for:

  • An application with one claimant, which was outstanding at 24 June. This should be McCafferty. It looks like it cannot be Youssef, as that appeared to have been finalised.
  • An application with one claimant, where a declaration was made by 24 June. It appears it cannot be Youssef (as there was no declaration made). It is possible that was McCafferty, though it seems very unlikely as the application was made on 20 June and so at 24 June it would seem that it must have been outstanding).

We have been unable to locate a further case with a single claimant the Secretary of State made a successful application, and we have been unable to match to the reported data the cases that we have located. As such, although the first five cases we have considered look like they warrant a place in the Secretary of State’s report as application that have been made, we are not confident that those are in fact the cases with the five applications reported by the Secretary of State.

When trying to match the judgments against the cases, we again struggle to reconcile the figures.

The open and closed final judgments

The Secretary of State’s report states that two final judgments were issued which decided section 6 declarations: one closed and one not closed.

In CF & Mohamed there was an open final judgment on 7 November 2013 and an accompanying closed final judgment. The case alone could account for the both figures in the report but there is a complicating factor. The Act defines a closed judgment as ‘one that is not made available, or fully available to the public.’ Arguably, the decision could thus be counted in the report solely as a closed final judgment.

In Youssef there was an open judgment which, although not a final judgment in the sense that the application for a declaration was granted or refused, is still a final judgment in so far as it appears to be the end of the matter as regards the section 6 application. Either way, it seems uncontroversial to state that the outcome in Youssef should fall within the kind of further information that under section 12(3) the Secretary of State should deem appropriate to provide.

However, not having been able to establish what the single-claimant case was where an application for a declaration was granted, it is difficult to know how that missing case fits into the judgment profiles.

The implications of the report

The section 12 reporting requirements do not ensure enough information will be provided so that the public can be adequately informed about the occasions when CMPs are sought and why declarations are made or not made. Subject to any secrecy requirements imposed by the courts or unless the fact of identifying the cases would imperil national security, Parliament should require that the Secretary of State’s report identify the cases, the dates on which applications were made, and the judgments that determined proceedings.

This is vitally important as a matter of democratic accountability, especially because the cases where CMPs have been or almost certainly will be sought often engage the behaviour of governments and the adequacy of oversight mechanisms.

Secondly, as the analysis of the cases against the data shows, we do not know the full substance of what happened in the first year. It may be that there are cases in the public domain which we have not located or there may be cases with some further secrecy attached which cannot be identified. Either way, we cannot tell whether or not the report is accurate. Someone else may be able to make the numbers add up – we very much hope someone will – but we have been unable to. Whatever the true position, the report does not provide enough information for an observer to get an adequate picture of what has happened this year. That is worrying.

It would be helpful if the Secretary of State was to identify the cases to which the report refers.

Thirdly, the Ministry of Justice has stated that the powers have been invoked ‘sparingly’ but that is not an appropriate way to characterise their use. Sparingly is a relative concept. It suggests sparingly in relation to the number of occasions when section 6 declarations could have been sought. But, of course, no evidence is provided in that regard. We do not know whether they have been sought at every turn or only sometimes. While it is a small number of cases, the early indications are that CMPs will be deployed in a very, very wide range of circumstances.

This is apparent from the kinds of cases where the government has thought a section 6 declaration should be sought. They include claims brought by non-British citizens abroad and by British citizens living in the UK. The claims range from those which relate to the deprivation of liberty to those which concern the imposition of economic sanctions. Some cases are focussed on the past – not least Britain’s relationship with the IRA – and others relate to much more contemporary issues such as allegations of recent misconduct by the security services. It seems nothing is off the table and, importantly, we are a long way from the archetypal case that was the impetus for the legislation, which was actions against the government by returning Guantanamo detainees. In the scope of cases, if not in the number, the use of the powers is anything but ‘sparing’.

In all, it is to be hoped that some further information will be provided to supplement this year’s report and we would welcome any details that readers may be able to add. More importantly, perhaps, it is to be hoped that, if the JSA remains as it is, all future reports are more comprehensive and provide sufficient information to enable the public to obtain a meaningful picture of how CMPs are being used.

Postscript:

In undertaking our research we had consulted with various people working in the area.  On Friday, 1 August, the working paper was published was sent to a number of people with a request that any clarifications, corrections or additions would be welcome as we would like to publish a supplement should further information arise.

The first addition has come through.  There was an application for a section 6 declaration in Al Ghabra v HM Treasury & FCO (PTA/7/2013 & CO/940/2013) and the declaration was made on 17 September 2013.  On our analysis, this addition means that six, not five applications were made during the first year. It also seems to be the declaration that affects a single claimant.  We will publish a supplement by the end of August with this and any other information we receive.

Read the full report by the Bingham Centre: Closed Material Procedures under the Justice and Security Act 2013: A Review of the First Report by the Secretary of State.

Lawrence McNamara is Senior Research Fellow & Deputy Director, Bingham Centre for the Rule of Law

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