CO/4391/2007 & CO/8559/2010
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| AHK & Others
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Mr Hugh Southey QC (instructed by Scudamores Solicitors) for AM Claimant
Ms Stephanie Harrison and Mr Edward Grieves (instructed by Tyndallwoods Solicitors) for AS, Claimant
Mr Ramby de Mello and Mr Tony Muman (instructed by Jackson Canter Solicitors) for FM, Claimant
Mr James Eadie QC, Mr Charles Bourne and Mr Paul Greatorex (instructed by Treasury Solicitors) for the Defendant
Ms Judith Farbey QC (instructed by SASO) Special Advocate
Hearing dates: 24 and 25 January 2012
Crown Copyright ©
MR JUSTICE OUSELEY:
The claims as they currently stand
The purpose of the directions hearing
The duty of fairness and its relationship to PII
(1) If, on an application for naturalisation as a British citizen made by a person of full age and capacity, the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under this subsection, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen.
(2) If, on an application for naturalisation as a British citizen made by a person of full age and capacity who on the date of the application is married to a British citizen [or is the civil partner of a British citizen], the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under this subsection, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen".
"Subject to paragraph 4, the requirements for naturalisation as a British citizen under section 6(2) are, in the case of any person who applied for it-…
(e) the requirements specified in paragraph 1(1)(b), (c) and (ca)."
"(b) that he is of good character; …"
"The Secretary of State … shall not be required to assign any reason for the grant or refusal of any application under this Act the decision on which is at his discretion; and the decision of the Secretary of State … on any such application shall not be subject to appeal to, or review in, any court."
"In some situations even to do this could involve disclosing matters which it is not in the public interest to disclose, for example, for national security or diplomatic reasons. If this is the position then the Secretary of State would be relieved from disclosure and it would suffice if he merely indicated that this was the position to the applicant who if he wished to do so could challenge the justification for the refusal before the courts. The courts are well capable of determining public interest issues of this sort in a way which balances the interests of the individual against the public interests of the state."
The PII process
"102. In a civil law context, the liberty of the subject is not at stake. Where a prima facie case of public interest immunity is made out, a party who wishes to invite the court to inspect material before determining whether it should after all be deployed must show that it is likely to give substantial support to his or her case: Air Canada v Secretary of State for Trade  2 AC 394. When the court is balancing the competing interests, Cross & Tapper on Evidence, 12th ed (2010), p 484 suggests, with reference to case law from various common law jurisdictions, that
"the court will take into account factors such as the seriousness of the claim for which disclosure is sought, whether or not the government is itself a party or alleged to have acted unconscionably, the relevance of the particular evidence to the dispute, taking into account other possible sources of evidence, and on the other side, the nature of the state's interest, and the length of time that has elapsed since the relevant discussion took place.""
"It is universally recognised that here there are two kinds of public interest which may clash. There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done. There are many cases where the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it. With regard to such cases it would be proper to say, as Lord Simon did, that to order production of the document in question would put the interest of the state in jeopardy. But there are many other cases where the possible injury to the public service is much less and there one would think that it would be proper to balance the public interests involved."
"If public interest immunity is approached by every litigant on the basis that a relevant and material document must be disclosed unless the disclosure will cause substantial harm to the public interest, the distinction between a class claim and a contents claim loses much of its significance. As a general rule the harm to the public interest of the disclosure of the whole or part of a document dealing with defence or national security or diplomatic secrets will be self-evident and will preclude disclosure."
After the PII process, what is the state of the proceedings?
Should there be a CMP for those other grounds or challenges?
"40. Neither of these possibilities is one which the law should readily contemplate. In the penal context, an accused is presumed innocent until proved guilty; there is a public interest in the trial of suspects before a court, but it is better that the state should forgo prosecution than that there should be any risk of an innocent person being found guilty through inability to respond to the full case against them. These imperatives do not operate in quite the same way in a civil context like the present, where the state may not be directly involved as a party at all. The rule of law must, so far as possible stand for the objective resolution of civil disputes on their merits by a tribunal or court which has before it material enabling it to do this. In considering how this may be achieved, if a defendant can only defend itself by relying on material the disclosure of which would damage national security, a balance may have to be struck between the interests of claimant and defendant in a civil context. "
"84. Lord Clarke JSC (para 161) understands it to be common ground that there could be no objection to a closed procedure were the parties to agree to it (as claimants might, were the only alternative to be the striking out of their claims). From my part I respectfully disagree. The rule of law and the administration of justice concern more, much more, than just the interests of the parties to litigation. The public too has a vital interest in the conduct of proceedings. Open justice is a constitutional principle of the highest importance. It cannot be sacrificed merely on the say so of the parties."