England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/03/2015

Mr Justice Wyn Williams:

1. Section 6 of the Justice and Security Act 2013 (hereinafter referred to as "the Act") is in the following terms:-

"(1) The Court seised of relevant civil proceedings may make a declaration that the proceedings are proceedings in which a closed material application may be made to the court.

(2) The court may make such a declaration –

(a) on the application of –

(i) the Secretary of State…..or

(ii) any party to the proceedings, or

(b) of its own motion.

(3) The court may make such a declaration if it considers that the following two conditions are met.

(4) The first condition is that –

(a) a party to the proceedings would be required to disclose sensitive material in the course of the proceedings to another person (whether or not another party to the proceedings), or

(b) a party to the proceedings would be required to make such a disclosure were it not for one or more of the following –

(i) the possibility of a claim for public interest immunity in relation to the material,

(ii) the fact that there would be no requirement to disclose if the party chose not to rely on the material,

(iii) section 17(1) of the Regulation of Investigatory Powers Act 2000 (exclusion for intercept material),

(iv) any other enactment that would prevent the party from disclosing the material but would not do so if the proceedings were proceedings in relation to which there was a declaration under this section.

(5) The second condition is that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration.

(6) The two conditions are met if the court considers that they are met in relation to any material that would be required to be disclosed in the course of the proceedings (and an application under subsection (2)(a) need not be based on all of the material that might meet the conditions or on material that the applicant would be required to disclose).

(7) The court must not consider an application by the Secretary of State under subsection (2)(a) unless it is satisfied that the Secretary of State has, before making the application, considered whether to make, or advise another person to make, a claim for public interest immunity in relation to the material on which the application is based.

(8) A declaration under this section must identify the party or parties to the proceedings who would be required to disclose the sensitive material ("a relevant person").

(9) ………..

(10) …………

(11) In this section –

"closed material application" means an application of the kind mentioned in section 8(1)(a),

"relevant civil proceedings" means any proceedings (other than proceedings in a criminal cause or matter) before –

(a) the High Court,

(b) the Court of Appeal,

(c) the Court of Sessions, or

(d) the Supreme Court,

"sensitive material" means material the disclosure of which would be damaging to the interests of national security."

2. On 20 November 2014 I made a declaration pursuant to section 6 of the 2013 Act. When I did so I indicated that I would provide reasons for so doing in writing at a later date. These are my reasons.
3. The Defendant filed a statement of reasons in which she asserted that all the conditions specified in section 6 of the Act for the making of a declaration were met in this case. The Claimant's legal representatives did not dissent. On the basis of the Defendant's statement of reasons there can be no doubt that the two conditions set out in section 6(4) and 6(5) were met. On any view, the Defendant would have been required to disclose sensitive material to the Claimant. Further, I was in no doubt that it was in the interests of the fair and effective administration of justice to make the declaration. So much will be obvious from a reading of the open and closed judgments on the substantive claim. I was also satisfied from the statement of reasons that the requirements of section 6(7) were met.
4. I was empowered to make the declaration sought provided I was "seized of relevant civil proceedings" – see section 6(1) of the Act. Such proceedings are defined as proceedings before the High Court "other than proceedings in a criminal cause or matter" – see section 6(11).
5. The phrase "criminal cause or matter" appears in statutory provisions other than section 6 of the Act. Primarily, it occurs in statutory provisions concerned with appeals. Mr Chawla QC, quite properly, took me through a number of decisions in which the phrase has been considered in that context and/or when the court has found it necessary to consider whether proceedings are criminal or civil in nature. In particular he referred me to R –v- Lambeth Magistrates Court ex parte McComb [1983] 1 QB 551, Bonalumi –v- Secretary of State for the Home Department [1985] 1 QB 675, Cuoghi –v- Governor of HMP Brixton No 1[1997] 1WLR 1346 and B –v- Chief Constable of Avon and Somerset [2001] 1 WLR 340.
6. It does not seem to me to be necessary or fruitful to seek to analyse those decisions, or indeed, to seek to reconcile them all if that is possible. I say that since in R (Guardian News and Media Limited) v City of Westminster Magistrates' Court and Another [2013] QB 618 the Court of Appeal concluded that the phrase "criminal cause or matter" need not have one meaning regardless of its statutory context but, rather, might be interpreted differently depending upon its statutory context - see, in particular, paragraphs 101 to 106 in the judgment of Hooper LJ and paragraph 110 in the judgment of Lord Neuberger of Abottsbury MR (as he then was). I must determine whether these proceedings fall to be described as a criminal cause or matter in the context of and set against the policy behind the 2013 Act.
7. In his written and oral submissions Mr Chawla QC argued persuasively that a purposive interpretation of section 6 of the Act compelled the conclusion that this judicial review should not be excluded from its ambit. I agree. It would be most unfortunate if cases of this kind were excluded from the ambit of section 6 of the Act just because they have a connection with criminal proceedings in another jurisdiction. I agree with Mr Chawla's point that in order to decide whether proceedings are civil or criminal in the context of the Act it is necessary to identify the core function to be performed by the court in the proceedings in question. In this case the court will be called upon to determine whether the Defendant lawfully exercised her discretion when she refused the requests made of her on the grounds of national security. The function of this court is a step removed from any proceedings which can properly be categorised as a criminal cause or matter.
8. In my judgment it was proper to make a declaration under section 6 of the Act because all the statutory criteria for the making of such a declaration were met. In my view, too, the Claimant was right not to oppose the making of the declaration.