The Belhaj finale: Exclusion of closed material procedure means less scrutiny of DPP decisions — Nicholas Clapham
5 July 2018
The rendition to Libya in 2004 of Mr Belhaj and his wife, Mrs Boudchar has given rise to a series of important cases in the domestic courts. In Belhaj and another v Straw and others) and Rahmatullah (No 1) v Ministry of Defence and another  UKSC 3 the Supreme Court unanimously ruled that the doctrine of state immunity did not operate to bar claims against the Government arising from their detention (as discussed in these pages by Dominic Ruck Keene).
Recently the parties in the Belhaj case have reached a mediated settlement and this action is at an end. Although the settlement was concluded without admission of liability, the Prime Minster issued an apology which included the following statement:
The UK Government’s actions contributed to your detention, rendition and suffering. The UK Government shared information about you with its international partners. We should have done more to reduce the risk that you would be mistreated. We accept this was a failing on our part.
The Remaining Case
Despite the end of those proceedings, a procedural argument remained extant which concerned the applicability of closed material proceedings to judicial review in certain cases. In Belhaj and another v Director of Public Prosecutions and another  UKSC 33 (4 July 2018) the Appellants sought judicial review of a decision not to prosecute a person said to be a member of the British Secret intelligence Service.
Although the matter was then settled before judgment, the Court decided that this issue required authoritative determination in light of its importance.
The allegation was broadly one of connivance in the Appellant’s abduction, ‘rendition’ and maltreatment (although Her Majesty’s Government neither confirmed nor denied such involvement during the proceedings). The Crown Prosecution Service decision was made on the basis of 28,000 documents, none of which were disclosed to the Appellants due to their security classification.
The issue for the Court was whether this material could be received during judicial review proceedings using the closed material procedure by which the material is disclosed to the court and a special advocate but not the Appellants.
Although the European Court of Human Rights has endorsed the use of closed material procedure where necessary and proportionate (Kennedy v UK (2011 52 EHRR 4)), the common law rule requiring disclosure in litigation means that the use of closed material procedure is not within the inherent jurisdiction of the courts and therefore it requires statutory authority before it can be applied (Al Rawi v Security Service (JUSTICE intervening)  1 AC 531).
The extension of closed material procedure to civil proceedings was made by the Justice and Security Act 2013. The Act was brought in to enable the government to defend civil proceedings without having to disclose sensitive material or settling unmeritorious claims. ‘Relevant civil proceedings’ are defined by section 6(11) of the Act as “any proceedings (other than proceedings in a criminal cause or matter) . . .”
The question for the Supreme Court was therefore whether the judicial review of a prosecution decision amounted to criminal proceedings in this sense – if it did, the closed procedure could not be used.
By a 3 to 2 majority the Court decided that it did. Lords Sumption and Mance and Lady Hale were in the majority and Lords Lloyd-Jones and Wilson were in the minority.
Lord Sumption (with whom Lady Hale agreed) concluded that judicial review cannot be regarded as a solely civil proceeding and the ordinary and natural meaning of the phrase “proceedings in a criminal cause or matter” included ‘proceedings by way of judicial review of a decision made in a criminal cause’. Lord Sumption reviewed a line of authority stretching back to the Supreme Court of Judicature Act 1873 in support of this conclusion together with an assessment that
The reality of the Appellants’ application is that it is an attempt to require the Director of Public Prosecutions to prosecute . . .
In dissent Lord Lloyd-Jones (with whom Lord Wilson agreed) suggested that the contested phrase could have differing meanings depending upon the statutory context (R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (No 2)  EWCA Civ 420;  QB 618). In the context of the Justice and Security Act 2013 he considered that it did not extend to a “public law challenge to a decision as to whether to initiate criminal proceedings” – this he considered was extraneous to the criminal process. Disagreeing with Lord Sumption’s assessment of the reality of the Appellants’ application he identified that, even if it were to succeed, further steps would be required before criminal proceedings might begin.
Both judges considered the statutory context of the phrase in order to identify the reason behind the exclusion of “proceedings in a criminal cause or matter” from the closed material procedure. In doing so they each referred to the Justice and Security Green Paper Cm 8194/2011.
Lord Sumption found that the difference between civil and criminal proceedings lay in the degree of control exercisable by the executive in criminal cases. He recognised that, unlike civil proceedings in which the government is a defendant, in criminal proceedings it always has the option of withdrawing the prosecution in order to protect sensitive material.
Whereas Lord Sumption did not feel that this supported an argument for the use of closed procedure in the present case, Lord Lloyd-Jones considered that as the Director of Public Prosecutions, as Respondent, had no power to withdraw from the current proceedings, that same rationale therefore applied. For him, this case presented the very type of conflict between open justice and national security that required the application of the compromise provided by the Act.
In a separate judgment allowing the appeal, Lord Mance identified the rationale for excluding criminal proceedings from closed material procedure as the protection of an accused rather than the facilitation of proceedings against them.
However, the present case was not concerned with traditional Article 6 rights but with a third party challenge to a decision not to prosecute. The Government sought to use the closed procedure to enable the court to consider the material that was used in the decision not to prosecute.
As the Divisional Court ( EWHC 3056 (Admin)) had previously recognised (as discussed in these pages by Alasdair Henderson), the alternative to the closed procedure was likely to be a successful application by the Secretary of State for public interest immunity. Accordingly, although the Applicants’ claim is not proceeding, the result of the present case is that relevant but sensitive material could be ‘entirely removed from the scrutiny of the court’.
The case perpetuates the paradox identified by the Divisional Court that the Appellants, in arguing that the closed procedure amounted to an infringement of their rights, were arguing for the removal of a procedure that might at least enable some judicial scrutiny. The success of their argument in the Supreme Court means that in future similar cases the Government will be deprived of a procedure which would enable it to defend judicial review where traditional Article 6 rights are not in issue and withdrawal is not an option. This appears to be a defeat for the rationale behind the Justice and Security Act.
Nicholas Clapham is a teaching fellow at the School of Law of the University of Surrey.