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 8 of the Justice and Security Act 2013 (hereinafter referred to as "the Act") provides:

"(1) Rules of court relating to any relevant civil proceedings in relation to which there is a declaration under section 6 ("section 6 proceedings") must secure –

(a) that a relevant person has the opportunity to make an application to the court for permission not to disclose material otherwise than to-

(i) the court,

(ii) any person appointed as a special advocate, and

(iii) where the Secretary of State is not the relevant person but is a party to the proceedings, the Secretary of State,

(b) that such an application is always considered in the absence of every other party to the proceedings (and every other party's legal representative),

(c) that the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security,

(d) that, if permission is given by the court not to disclose material, it must consider requiring the relevant person to provide a summary of the material to every other party to the proceedings (and every other party's legal representative),

(e) that the court is required to ensure that such a summary does not contain material the disclosure of which would be damaging to the interests of national security.

(2) Rules of court relating to section 6 proceedings must secure that provision to the effect mentioned in subsection (3) applies in cases where a relevant person –

(a) does not receive the permission of the court to withhold material, but elects not to disclose it, or

(b) is required to provide another party to the proceedings with a summary of material that is withheld, but elects not to provide the summary.

(3) The court must be authorised-

(a) if it considers that the material or anything that is required to be summarised might adversely affect the relevant person's case or support the case of another party to the proceedings, to direct that the relevant person-

(i) is not to rely on such points in that person's case, or

(ii) is to make such concessions or take such other steps as the court may specify, or

(b) in any other case, to ensure that the relevant person does not rely on the material or (as the case may be) on that which is required to be summarised."

2. The relevant rules of court are contained within CPR 82. Rule 82.13 provides:-

"(1) The relevant person –

(a) must apply to the court for permission to withhold sensitive material from the specially represented party and the specially represented party's legal representatives in accordance with this rule; and

(b) may not rely on sensitive material at a hearing on notice unless a special advocate has been appointed to represent the interests of the specially represented party.

(2) The relevant person must file with the court and, at such time as the court directs, serve on the special advocate – (a) the sensitive material: and

(b) statement of the relevant person's reasons for withholding that material from the special representative party and the special represented parties legal representative.

(3) …. "

3. CPR Rule 82.14(10) provides:-

"The Court must give permission to the relevant person to withhold sensitive material where it considers that disclosure of that material would be damaging to the interests of national security."

4. The phrase "sensitive material" is defined within section 6(11) of the 2013 Act as meaning:-

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

5. On 20 November 2014 I made a declaration pursuant to section 6(1) of the Act. The consequence was that the Defendant was entitled to make a closed material application to the court seeking its permission to withhold sensitive material. I considered an application made by the Defendant on 3, 10 and 11December 2014. The hearing was a closed hearing attended by special advocates appointed to represent the interests of the Claimant and the lawyers instructed on behalf of the Defendant. At the conclusion of the hearing I directed that the Defendant should have permission to withhold the sensitive material which I had considered. In this open judgment I provide the reasons for my decision.
6. The primary position taken by the special advocates was that much of the sensitive material could and should be disclosed within what has become known in a series of recent cases as a "confidentiality ring". They submitted that the confidentially ring in this case should include the Claimant and his lawyers of choice but they did not rule out the possibility that I could make an order which would have the effect that the material would be disclosed to the Claimant's lawyers of choice but not to the Claimant himself.
7. The Defendant's position was that there should be no disclosure of the sensitive material at all. Further leading counsel for the Defendant argued that I had no power to direct disclosure of any sensitive material within a confidentiality ring however that ring was constituted.
8. Having reviewed the material in question I was in no doubt that it was sensitive material for the purposes of the Act and the rules. That being so, at first blush at least, both the Act and the Rules appear to suggest that I had no option but to give permission to the Defendant to withhold that material subject, of course, to the court's obligation to consider whether a summary of the material could be provided as opposed to the material itself.
9. The special advocates recognised the possibility that is how the Act and the Rules were to be interpreted but, nonetheless, sought to persuade me that I might refuse permission to withhold the sensitive material yet direct its disclosure into a confidentiality ring.
10. There is no authority, as yet, which determines this point definitively. Despite that I have reached the conclusion that I should not, in this short judgment, seek to determine the point of principle since I am satisfied, unhesitatingly, on the facts of this case, that it would damage the interest of national security to make any direction for disclosure of the sensitive material into a confidentiality ring whether or not that ring included the Claimant. In my judgment the point of principle is best determined if and when a case ever arises, on the facts, in which the court would be prepared to conclude that the disclosure of sensitive material within a confidentiality ring did not damage the interests of national security.
11. In AHK and Others –v- Secretary of State for the Home Department [2013] EWHC 1426 (Admin) Ouseley J set out all the practical reasons why disclosure of sensitive material within a confidentiality ring would normally be inappropriate. First there will the risk of inadvertent disclosure. Second there will be the risk that if disclosure takes place that the source will be unknown and suspicion will fall on the innocent. Third there are always likely to be problems as to who is "safe" to be within the confidentiality ring. Fourth a lawyer only ring will be extremely difficult in practice. It would, very likely, create significant and serious problems between the litigant and his lawyer of choice. It is also worth noting as pointed out by Ouseley J in AFK that a confidentiality ring, in national security cases, would bypass the protections against the disclosure of sensitive material. Is disclosure within the confidentially ring to occur only after those within the ring have been vetted and received training in the handling of sensitive material?
12. I acknowledge that the reservations expressed by Ouseley J about the possibility of disclosing sensitive material in a confidentiality ring were made in the context of an application for public interest immunity. It seems to me, however, that the same considerations would arise in the context of an application to withhold sensitive material under the Act.
13. The points to which I have just referred are likely to be made in every case in which disclosure of sensitive material is sought within a confidentiality ring. In the instant case there are additional reasons which militate against the disclosure of sensitive material within a confidentiality ring. The Claimant is outside the jurisdiction of this court. He is held in a prison in the US. It is extremely difficult to see how this court could control or supervise his use of the sensitive material if it was disclosed to him. With respect to the special advocates they were unable to suggest any measure or combination of measures which would remove the risks to national security should the sensitive material be disclosed to the Claimant personally.
14. Disclosure to the Claimant's lawyers of choice but not to the Claimant himself would create an impossible position in a case of this type. Notwithstanding the decision of Moses LJ in R (Serdar Mohammed) v SSHD [2014] 1 WLR 1071 our courts have, consistently, set their face against the notion that material can be provided to a litigant's lawyer of choice but not to the litigant himself. I can think of no justification for that occurring in this case.
15. By the close of the hearing at which I gave permission to the Defendant to withhold the sensitive material disclosed to the special advocates and the court I was firmly of the view that such was the only appropriate course in this case.
16. In light of these views expressed above I do not propose to produce a closed judgment. The reasons for my decision are those which are set out above.