Search Results for: Closed Material Procedures


Secret evidence v open justice: the current state of play

17 July 2011 by

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.
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Closed judgments: security, accountability and court processes

25 January 2019 by

Dr Lawrence McNamara is an academic at the University of York and a Senior Research Fellow at the Bingham Centre for the Rule of Law

A new practice direction reveals some valuable progress in the management of closed judgments, but leaves uncertainty and, very worryingly, indicates that some judgments will be destroyed. 

Closed material procedures (CMPs) have become an established option for the government when it wants to rely on security-sensitive evidence in civil litigation.

In immigration matters in the Special Immigration Appeals Commission (SIAC) and in the full range of civil proceedings under the Justice and Security Act 2013, CMPs permit the state to rely on evidence that will not be disclosed to the other party who may be (for example) subject to deportation or a claimant in an action alleging state complicity in rendition.

Open and closed judgments may be handed down. The latter will not be seen by non-state parties, their lawyers or the public.

In parallel, there have been heavy restrictions on access to and reporting of criminal terrorism cases, most notably Incedal.

CMPs and closed judgments are by nature a departure from fundamental rule of law standards of equality of arms and open justice. The Supreme Court pointed this out in Al Rawi and the Special Advocates have been highly critical of them.  Nonetheless, there is no sign that the CMPs will disappear. Instead, the trend has slowly been towards managing them and finding ways to mitigate some of the deficiencies.

A six-paragraph Practice Direction on Closed Judgments, issued on 14 January 2019, reveals some significant steps in that direction, but it lacks clarity in its scope and reveals a very troubling proposal for destruction of judgments.


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Justice and Security Bill: The Government is not for turning – Angela Patrick

29 May 2012 by

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.

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Historical first as Supreme Court boots Iranian bank out of secret hearing

21 March 2013 by

TEST CARD1 Crown Office Row’s Robert Wastell is acting for the Treasury in this case – he has had no part in writing this post. 

Extraordinary developments in the Supreme Court today as the court, for the first time in its history, conducted a secret hearing during which one of the parties, an Iranian Bank, was not allowed to take part. Full background to the case, Bank Mellat (Appellant) v HM Treasury (Respondent) is here.

If I could just repeat that for effect: the Government, which is being sued, gets to stay in court whilst the person doing the suing – and their lawyers – have to leave. The judges then hear security sensitive evidence which is potentially central to the case. Whilst one side is absent. No wonder Lord Neuberger, who as Master of the Rolls robustly blocked an attempt to introduce closed material procedures in civil trials via the back door (see his judgment in Al Rawi e.g. at para 30), sounds so pained in his statement. Curiously, this final hard-hitting paragraph was sent by the Court to its public email list but was left off the statement published on the Court’s website:

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High Court orders disclosure of closed judgment in Afghanistan interrogation case

16 October 2013 by

Justice and SecurityR (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.
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The Special Advocate – Not Waving but Drowning

30 October 2023 by

The unfairness of secret hearings is being aggravated by sustained neglect of the special advocate system.  In this piece I explain why I have regretfully concluded that I cannot accept any new appointments as a special advocate until the Government provides proper support for that system.

25 June 2023 was the tenth anniversary of section 6 of the Justice and Security Act 2013 (the JSA) coming into force.  It was an anniversary that, as far as I know, passed unremarked.  Nevertheless it was a remarkable anniversary – though not a cause for celebration.  This is because it marked 5 years since the date that Parliament had required a review of the controversial procedures under the Act, involving secret closed hearings – and yet the Government’s response to the recommendations from that review was still awaited.  Even now, no Government response has been forthcoming, nearly a year after the long-delayed report was published, despite the urgency attached to some of the recommendations.

What are these secret procedures?


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The Belhaj finale: Exclusion of closed material procedure means less scrutiny of DPP decisions — Nicholas Clapham

5 July 2018 by

supreme courtThe 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 [2017] 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 [2018] 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.

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The “uneasy” co-existence of public interest immunity and closed material procedure

7 November 2013 by

blind justiceCF 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.
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Closed material in UK proceedings cannot be disclosed in Strasbourg

28 April 2014 by

blind justiceWang Yam v Attorney General [2014] EW Misc 10 (CCrimC) 27 February 2014 – read judgment

It is for the UK government to decide whether to vary an order preventing publication of material heard in private in a murder trial, if the offender goes on to petition the European Court of Human Rights. It is not for the Strasbourg Court to determine whether the right to a fair trial should outweigh the risks to UK national security reasons.

The question regarding a state’s obligation not to impede the right of individual petition to Strasbourg arose where the applicant offender applied for an order permitting him to refer to material, which had been restricted on national security grounds during his murder trial, in an application to the European Court of Human Rights.
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Should more trials be held in secret? Part 2: A Special Advocate’s comment

1 December 2011 by

This is an expanded version of a comment made on Adam Wagner’s post:  Should more trials be held in secret?

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 … .


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Courts have no inherent power to order closed procedure – Al Rawi in the Supreme Court

13 July 2011 by

1 Crown Office Row’s Peter Skelton appeared for The Security Services in this case. He is not the author of this post.

Al Rawi and others (Respondents) (Respondents) v The Security Service and others (Appellants) [2011] UKSC 34 – read judgment; read press summary

At the centre of this appeal was the court’s power to order a “closed material procedure” for the whole or part of the trial of a civil claim for damages.  The question arose as a “preliminary issue” – a point to be determined on its own – in the appellants’  compensation claim for their alleged detention, rendition and mistreatment by foreign authorities in various locations, including Guantanamo Bay.

In countering the respondents’ claim for compensation, the appellant security services claimed that they had security sensitive material within their possession which they wished the court to consider in their defence but which could not be disclosed to the respondents. They therefore sought a “closed material procedure” for this part of their defence – a procedure whereby a party can withhold certain material from the other side where its disclosure would be contrary to the public interest.
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Government not required to disclose full details of defence

27 October 2014 by

blind justiceCF v The Ministry of Defence and others [2014] EWHC 3171 (QB) – read judgment

Angus McCullough QC of 1 Crown Office Row acted as Special Advocate in this case. He has nothing to do with the writing of this post.

The High Court has ruled that in a case against the state which did not directly affect the liberty of the subject, there was no irreducible minimum of disclosure of the state’s case which the court would require. The consequences of such disclosure for national security prevailed.

Factual and legal background

The claimant, Mohammed Ahmed Mohamed, had made a number of claims against various government departments, alleging complicity in unlawful and arbitrary detention and inhuman and degrading treatment and torture on the part of British authorities in Somaliland.  He also sought damages for trespass, breach of the Human Rights Act 1998, and misfeasance in public office. As Irwin J said,

The remedy sought is not confined to ordinary compensation, but extends to damages for breach of the Convention and to declaratory relief, which in the context of this case, and if the Claimant succeeded, would represent an important marking of unlawful behaviour: a matter in which there is a legitimate public interest.

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National Security trumps disclosure of Litvinenko secret documents, rules High Court

5 December 2013 by

LitvinenkoSecretary 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 successfully appealed against an order for disclosure of secret documents to the Inquest for the death of former KGB spy Alexander Litvinenko

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.


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Article 6 applies to challenge to conditions imposed on suspected Al-Qaeda affiliate – an extended look

19 May 2020 by

QX v Secretary of State for the Home Department [2020] EWHC 1221 (Admin)

In a complicated but very important decision, the High Court has ruled as a preliminary issue that the procedural protections under Article 6 which require a person to be given sufficient information about the allegations against them so they can give effective instructions to their lawyers will apply to a challenge to conditions imposed by order on a man suspected to have affiliations to Al-Qaeda.

This ‘extended look’ will explain the background to the issues in play and the way that a powerful ‘cocktail’ of rights under Articles 6 and 8 ECHR operates to try to ensure that a balance is struck between the rights of the individual and the collective interest in security.

Temporary Exclusion Orders

The claimant, QX, is a British national. He is married with three children who are all of toddler age. In October 2018, he and his wife were arrested in Istanbul.

On 26 November 2018 the Secretary of State successfully applied to the court for permission to impose a Temporary Exclusion Order (TEO) on QX for two years on grounds of national security. This was granted by the court and on 9 January 2019 QX was returned from Istanbul to the UK under the terms of the TEO.

A TEO is an order which may be imposed under the Counter-Terrorism and Security Act 2015 (“the 2015 Act”) in order to temporarily disrupt the return and activities of a citizen suspected of being involved in terrorist-related activity abroad to manage the risk that they may pose to the public. It is an offence triable in either the Magistrates’ or the Crown Court with a maximum sentence of 5 years if a person does not comply with TEO conditions without reasonable excuse.


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High Court quashes government’s refusal to proceed with Litvinenko inquiry

12 February 2014 by

alexandr-litvinenko-705.siLitvinenko, 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. 
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Aarhus Abortion Abu Qatada Abuse Access to justice administrative court adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Appeals Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 7 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders charities Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs court of appeal Court of Protection covid crime Cybersecurity Damages Dartmoor data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of candour duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal enforcement Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany gmc Google government Grenfell Health healthcare high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Jalla v Shell Japan Japanese Knotweed Judaism judicial review jury trial JUSTICE Justice and Security Bill Land Reform Law Pod UK legal aid legal ethics legality Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery monitoring murder music Muslim nationality national security NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal Parole patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Private Property Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries public law Regulatory Proceedings rehabilitation Reith Lectures Religion RightsInfo Right to assembly right to die right to family life Right to Privacy Right to Roam right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence sexual orientation Sikhism Smoking social media Social Work South Africa Spain special advocates Sports Standing statelessness Statutory Interpretation stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine UK Supreme Court unduly harsh united nations unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks Wild Camping wind farms WomenInLaw YearInReview Zimbabwe
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