When can a Closed Material Procedure be used?

7 December 2017 by Alasdair Henderson

Belhaj and Boudchar v. Director of Public Prosecutions (Foreign Secretary intervening) [2017] EWHC 3056 (Admin) – read judgment here.

The Justice and Security Act 2013 introduced the idea of Closed Material Proceedings (CMP) to civil litigation in a significant way for the first time. This is a procedure (which had previously only used in a small number of specialist tribunals) whereby all or part of a claim can be heard in closed proceedings in order for the court to consider material which, if disclosed publicly, would risk harming national security. These hearings exclude even the claimant, who is represented instead by a Special Advocate who takes instructions and then is unable to speak to his or her client again once they have seen the sensitive material.

This system is obviously far from ideal. Indeed it is a major deviation from the usual (and very important) principle that justice must not only be done, but be seen to be done. It was introduced because the alternative in some cases involving national security matters was no justice at all. But it must be used sparingly. In particular, the 2013 Act allows its use only in civil litigation and not in “proceedings in a criminal cause or matter” (section 6(11)). The question that the Divisional Court had to consider in this case is how wide that exception for criminal matters should be.

Background

The Claimants’ claim is that they were the victims of the infamous ‘extraordinary rendition’ programme run by the US intelligence agencies as part of the war on terror. They allege that they were ‘rendered’ from Thailand to Libya, where they were unlawfully detained, tortured and threatened with execution, and they are suing a number of UK government figures who they say were complicit in, and indeed instrumental in arranging, their rendition.

Parallel to those civil proceedings, in January 2012 a criminal investigation began into complaints of ill-treatment by detainees (including the Claimants) with a view to considering whether there should be a prosecution for misconduct in public office. However, on 9 June 2016 the Crown Prosecution Service decided not to prosecute. The Claimants invoked their Victims Right to Review, but on 5 August 2016 the CPS Director of Legal Services wrote to them confirming the original decision not to bring any charges.

The Claimants were bitterly disappointed by this and launched a judicial review of the decision not to prosecute. The judicial review application was the claim to which this judgment relates. In the course of it, the Foreign Secretary applied under s.6 of the 2013 Act for a CMP hearing in order for the court to consider sensitive material. The Claimants’ objected to this, on the basis that the judicial review constituted a ‘criminal cause or matter’ and therefore the court had no jurisdiction to allow CMP.

Decision

The Divisional Court conducted an exhaustive analysis of the law on what amounts to a criminal cause as opposed to a civil one. However, the Court’s conclusion was eventually that most of this case-law did not assist, because it was in the context of criminal appeals, and the phrase ‘criminal cause or matter’ can have different meanings in different statutes!

Ultimately, the Court decided that whilst the judicial review application could be seen as proceedings concerning a criminal cause or matter, it was certainly not proceedings in a criminal cause or matter. The Court held that there was jurisdiction to consider the Foreign Secretary’s CMP application. And so the litigation continues…

Comment

The most notable point in this case (and the most interesting from the standpoint of this blog) is the comment made by the Divisional Court about the tension between openness and justice created by national security concerns and the CMP process. The Court noted that:

As Mr Eadie recognises, there is a paradox here. The effect of the extension of the JSA 2013 to proceedings such as these is that the executive, in the form of the prosecuting authorities, can be held to account by judicial process. What is described by the Claimants as an encroachment on their fundamental rights in fact enfranchises informed and detailed scrutiny by the Courts, which would otherwise be impossible.

This gets to the nub of the issue. CMP is a restriction on basic rights to a fair trial, but in order to achieve a fairer trial than would otherwise be possible. As the court noted, in criminal matters “closed proceedings might be likely to breach Article 6, as well as long-established common law principles”, which is why they are exempted from the 2013 Act. But in civil litigation, even civil litigation which concerns criminal matters, closed hearings are on occasion the better of two evils.

Alasdair Henderson is a barrister at One Crown Office Row