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A year after it was first announced, the Detainee Inquiry on 6 July published its Protocol and terms of reference. On 3 August, JUSTICaE together with 9 other NGOs wrote to the Detainee Inquiry. Among other things, we said that an Inquiry conducted on such terms would ‘plainly … not comply with Article 3 [of the ECHR]’. We also made clear that, were the Inquiry to proceed on this basis, we would not submit any evidence or attend any further meetings with the Inquiry team.
In his interesting article last week (‘Will the Detainee Inquiry be human rights compliant?’, 8 August) Matthew Flinn queried our claim that the Protocol fails to meet the requirements of article 3 ECHR. Notwithstanding the government’s own statement that it doesn’t intend for the Inquiry to comply with article 3, Flinn set out various arguments to suggest that the Protocol might nonetheless comply with article 3 in any event.
Publishing the Justice and Security Bill this morning, the Secretary of State for Justice said “I have used the last few months to listen to the concerns of … civil liberties campaigners with whom I usually agree.”
There are many people who today would sorely like to agree that Ken has listened and has taken their concerns on board. Unfortunately, the Government’s analysis remains fundamentally flawed. The Green Paper was clearly a “big ask”. There have undoubtedly been significant changes made from the proposals in the Green Paper. However, the secret justice proposals in the Justice and Security Bill remain fundamentally unfair, unnecessary and unjustified.
R (on the application of the Metropolitan Police Service) v the Chairman of the Inquiry into the Death of Azelle Rodney and Interested Parties [2012] EWHA 2783 (Admin) – read judgment
R (on the application of Maya Evans) v Secretary of State for Defence, with Associated Press intervening [2013] EWHC 3068 (Admin) – read judgment
In “Evans (No. 1)”, a 2010 case concerning the transfer of suspected insurgents for questioning in certain military centres in Afghanistan, the High Court had ruled, partly in an open judgment, partly in closed proceedings, that UK transfers to NDS Kandahar and NDS Lashkar Gah could proceed without risk of ill treatment (which is contrary to UK policy), but that it would be a breach of the policy and therefore unlawful for transfers to be made to NDS Kabul. It was subsequently discovered that there had not been jurisdiction to follow a closed procedure in that case, but what was done could not be undone, so the confidentiality agreements and the closed judgment remained in force. Continue reading →
Litvinenko, R (On the application of) v Secretary of State for the Home Department[2014] EWHC 194 (Admin)- read judgement
Neil Garnham QC and Neil Sheldon of 1 Crown Office Row represented the Secretary of State in these proceedings. They had nothing to do with the writing of this post.
This was an application by the widow of Alexander Litvinenko for judicial review of the refusal by the Secretary of State for the Home Department to order the setting up of a statutory inquiry into his death in London in November 2006. The Secretary of State had been asked to set up such an inquiry by Sir Robert Owen, the judge appointed to conduct the inquest into Mr Litvinenko’s death as Assistant Coroner.
Factual and Legal Background
Mr Litvinenko was taken ill on 1 November 2006 and died in University College Hospital on 23 November. There appears to be no doubt that the cause of death was radiation poisoning as a result of the ingestion of a radioactive substance, polonium 210. An “extremely thorough” investigation into the death was carried out by the Metropolitan Police Service with the assistance of the Atomic Weapons Establishment, Public Health England, the Health and Safety Executive, the Forensic Science Service and other external experts. Continue reading →
Secretary of State for Foreign and Commonwealth Affairs v Assistant Deputy Coroner for Inner North London [2013] EWHC 3724 (Admin) – read judgment
1 Crown Office Row’s Neil Garnham QC and Neil Sheldon acted for the claimant in this case (the Secretary of State for the FCO). They had no involvement in the writing of this post.
The Foreign Secretary in February 2013 issued a certificate of Public Interest Immunity (PII), on the grounds of national security and/or international relations, to prevent the disclosure of a representative sample of Government documents relating to the 2006 poisoning. In May 2013 the Coroner for the Litvinenko Inquest (Sir Robert Owen) partially rejected that certificate and ordered the disclosure of gists of material relating to some of the key issues surrounding the death(read ruling). In this judgement, a panel of three judges of the High Court unanimously quashed that ruling.
Department of Health v. Information Commissioner et al [2015] UKUT 159, 30 March 2015, Charles Jread judgmentSimon Lewis requested that the Department of Health supply him with copies of the ministerial diary of Andrew Lansley from May 2010 until April 2011, via a Freedom of Information request. Mr Lewis’s interest in all this is not revealed in the judgment, but I dare say included seeing whether the Minister was being lobbied by private companies eager to muscle in on the NHS in this critical period. But such is the nature of FOIA litigation that it does not really look at the motive of the requester – and this case does not tell us what the diary showed. Indeed by the time of this appeal, Lewis was untraceable, and the burden of the argument in favour of disclosure was taken up by the Information Commissioner. The real interest in this decision is in Charles J’s robust agreement with the First Tier Tribunal that the information should be disclosed. In so doing, he fully endorsed the criticisms made by the FTT of the eminent civil servants who gave evidence before the FTT – in trenchant terms, as we shall see. He also gave an interesting account of how the public interest qualification should be applied in response to FOIA requests. Continue reading →
R (on the application of LITVINENKO) v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2013) QBD (Admin) 4 October 2013, judgment behind Lawtel paywall UPDATED x 2
An extraordinary story which would have raised our eyebrows at its implausibility had it come from our spy novelists. In late 2006, Alexander Litvinenko was murdered by polonium-210 given to him in London. He was an ex-Russian Federation FSB agent, but by then was a UK citizen. He had accused Putin of the murder of the journalist Anna Politovskaya. He may or may not have been working for MI6 at the time of his death. The prime suspects for the killing are in Russia, not willing to help the UK with its inquiries. But rightly, in one form or another, we want to know what really happened.
Not entirely surprisingly, Marina Litvinenko said that her husband had been murdered on orders from the Russian Federation. An inquest started, though the UK Government said that much of what the coroner wanted to inquire was off limits because covered by public interest immunity. In the light of this stance, the coroner, Sir Robert Owen, a senior high court judge, had said that any investigation into Litvinenko’s death could only be adequately carried out by a public inquiry. The secretary of state refused to order such an inquiry, saying that it could take place after the inquest if necessary. The inquest continues, but it can therefore only look at part of the story.
Al Rawi & Ors v the Security Service & Ors [2010] EWHC 1496 (QB) (21 June 2010) – Read judgment
The Government has received another in an increasingly long line of blows in the Al Rawi & Others foreign torture case, with Mr Justice Silber ordering a closed hearing to see whether two key security service documents are to be disclosed to the claimants. If the Government chooses not to claim public interest immunity, which is unlikely, the documents will be disclosed immediately.
The compensation claim involves six claimants who were detained at various locations, including Guantanamo Bay and Bagram in Afghanistan, alleging various forms of mistreatment. They claim to have been subjected to false imprisonment, trespass to the person, conspiracy to injure, torture, breach of contract, negligence, misfeasance in public office and breaches of their rights under the Human Rights Act 1998.
The Government has recently ordered a public inquiry into the security services’ alleged complicity in torture, but this is not likely to start until after the Al Rawi claims are resolved.
Since at least the 16th centurythe personification of Justice has been depicted wearing a blindfold to represent impartiality.
Angus McCullough QC is a barrister at 1 Crown Office Row with experience of acting as a Special Advocate in closed proceedings since 2002.
The Government has still not implemented the review of Closed Procedures that Parliament had dictated should take place when passing the Justice and Security Act 2013. A review is required to cover the first five years after the Act came into force, and should have been completed “as soon as reasonably practicable” thereafter. That period expired in June 2018, and there are still no signs of a reviewer being appointed.
Readers familiar with closed procedures and their background may wish to skip the first half of this post.
‘Secret Justice’ is a deliberate oxymoron, used by some legal commentators as a term for Closed Material Procedures (CMPs). Justice, of course should generally be open and transparent, not secret. The principle of open justice dates back centuries, and the law reports are full of reiterations of its importance. Here’s one example, this from Lord Woolf in R v Legal Aid Board, ex p Kaim Todner [1999] QB 966:
The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases. This is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public’s confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties’ or witnesses’ identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely. If secrecy is restricted to those situations where justice would be frustrated if the cloak of anonymity is not provided, this reduces the risk of the sanction of contempt having to be invoked, with the expense and the interference with the administration of justice which this can involve.
An equally fundamental principle of fairness in legal proceedings is that a party should know the evidence and case against them. This has even been given a Latin epithet (audi alteram partem). But you don’t need to be a scholar of either classics or law to appreciate that being aware of the material that the other side is putting before the court, and having the opportunity to challenge and answer it, is a cardinal feature of fair legal proceedings. The personification of Justice (see picture) is blindfolded, to represent her impartiality; but litigants are expected to have an unimpaired view of the proceedings.
Our recent post highlights the Government’s consultation on the Justice and Security Green Paper. Having been involved as a Special Advocate in many hearings involving closed material, I am troubled about these proposals, as well as the lack of public debate that they have generated.
The main proposals in the Green Paper are based on the highly debatable assumption that existing closed material procedures (CMPs as per the acronym adopted) have been shown to operate fairly and effectively. CMPs, were first introduced in 1997 and have escalated in their application since then. At §2.3 of the Green Paper it is stated that:
The contexts in which CMPs are already used have proved that they are capable of delivering procedural fairness. The effectiveness of the Special Advocate system is central to this … .
This coming Wednesday sees the end of the first stage of the Justice and Security Bill’s passage into law. The Bill which would introduce Closed Material Procedures (CMP) – where one side of a case is excluded with his legal team and represented by a security cleared special advocate in cases involving national security – has become widely known as the Secret Courts Bill. Its progress has been closely scrutinised in this blog over the past six months.
As it completes Third Reading and passes to the House of Commons, we reflect on last week’s Lords amendments to the Bill. While there are still issues ripe for discussion at Third Reading, it is broadly accepted that the key Lords votes have passed.
1 Crown Office Row’s Peter Skelton appeared for The Security Services in this case. He is not the author of this post.
On Wednesday last week, the Supreme Court handed out two apparently contradictory judgments on what seemed to be the same issue – see our reports here and here. Had they taken leave of their senses? In one case, the court appeared to say, there was no illegality or human rights-incompatibility with a procedure that dispensed with the requirement that all the material must be shown to both parties in every case. In the other, it ruled that such a “closed procedure” was such an insult to “fundamental” common law principles of open justice and fairness that no court, however lofty, would have the jurisdiction to order it without statutory authority.
The key to this apparent inconsistency lies in the principles at the heart of these cases, which pull in opposite directions: the principle of fair and open justice, or, in Article 6 terms, “equality of arms,” versus the principle that gives weight to the interests of national security.
In Tariq v Home Office the Court considered the permissibility and compatibility with European Union law and the European Convention of a closed material procedure authorised by certain statutory provisions. The issues in that case centred on the lawfulness and effect of those provisions and their compatibility with, amongst others, Article 6 of the Convention, whereas in Al Rawi v Home Office the Court was concerned with the position at common law. This superficially small distinction made the world of difference to the outcome of both cases. Continue reading →
Commissioner of Police of the Metropolis & Anor v Times Newspapers Ltd & Anor [2011] EWHC 2705 (QB) (24 October 2011) – Read judgment.
Mr Justice Tugendhat has held that, with restrictions, The Times Newspapers Ltd (TNL) should be allowed to use information from leaked documents in its defence to a libel claim brought by the Metropolitan Police Service and the Serious Organised Crime Agency (SOCA). However, proportionality limited the reach of this judgment to the next stage in the libel claim, after which reassessment may be necessary.
It was held that restrictions in the order made did not interfere with TNL’s right to a fair trial in the libel case nor offend its right to freedom of expression. Decisions on specific documents was dealt with in a closed judgment because of the sensitivity of the subject matter.
CF v Security Service and others and Mohamed v Foreign and Commonwealth Office and others [[2013] EWHC 3402 (QB) – read judgment
The High Court has today made the first court ruling on the use of the Justice and Security Act 2013 in a civil claim for damages.
In a ruling on preliminary issues, Irwin J made a declaration that the government can make a closed material application to the court in this case. The Court also ruled on PII. The following summary is based on the Court’s press release.
Factual background
CF and Mohammed Ahmed Mohamed are both British citizens of Somali descent. CF left the United Kingdom in 2009, Mohammed Ahmed Mohamed having left in 2007. They were both detained by the Somaliland Authorities on 14 January 2011. They were then detained until removal to the UK on 14 March 2011. Each claims that they were unlawfully detained, tortured and mistreated during the period of detention in Somaliland. Continue reading →
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A year after it was first announced, the Detainee Inquiry on 6 July published its Protocol and terms of reference. On 3 August, JUSTICaE together with 9 other NGOs wrote to the Detainee Inquiry. Among other things, we said that an Inquiry conducted on such terms would ‘plainly … not comply with Article 3 [of the ECHR]’. We also made clear that, were the Inquiry to proceed on this basis, we would not submit any evidence or attend any further meetings with the Inquiry team.
Publishing the 
Secretary of State for Foreign and Commonwealth Affairs v Assistant Deputy Coroner for Inner North London [2013] EWHC 3724 (Admin) 
This is an expanded version of a comment made on Adam Wagner’s post: 
This coming Wednesday sees the end of the first stage of the 
Commissioner of Police of the Metropolis & Anor v Times Newspapers Ltd & Anor [2011] EWHC 2705 (QB) (24 October 2011) – 
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