England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/11/2013

Mr Justice Leggatt :

1. The claimant has requested the appointment of a special advocate to assist the court in determining claims for public interest immunity made by the defendant.

The Scope of Disclosure

2. A trial of preliminary issues in this action is due to take place in January 2014. For the most part, the preliminary issues involve matters of law. They start from the assumption that the facts alleged in the Amended Defence concerning the arrest and detention of the claimant by UK armed forces in Afghanistan are true. It is common ground, however, that some limited questions of fact arise in relation to two of the preliminary issues. Issue 2(i) is whether the act of detaining the claimant is attributable to the defendant or to the United Nations. As well as matters of law, this issue potentially raises questions about whether UK armed forces in Afghanistan were in fact operating as agents of the United Nations. In addition, one aspect of Issue 3 – which asks whether the claimant's detention was lawful – concerns whether the claimant's detention was subject to appropriate reviews by the defendant.
3. The defendant has disclosed documents relevant to these questions of fact and some further disclosure is anticipated. Some documents, however, have been withheld or redacted on the ground that they contain information for which the defendant claims public interest immunity (PII).

The PII Claims

4. Two PII certificates have been issued dated 7 June and 10 December 2013. These certificates cover a total of 24 documents, five of which have been withheld in full and the rest in part. I am told that the question whether these documents are properly subject to PII has not been considered in earlier proceedings.
5. Since those certificates were issued, the claimant's solicitors have reviewed documents which were disclosed in earlier proceedings for judicial review on the application of Maya Evans. Those proceedings culminated in a judgment of the Divisional Court given on 25 June 2010: see R (Maya Evans) v Secretary of State for Defence [2010] EWHC 1445 (Admin). The claimant wishes to rely in the present action on a number of documents (some 28) disclosed in those proceedings. However, the defendant has indicated that claims for PII will be made in relation to parts of around 11 of these documents. In some cases a claim of PII was successfully made in the earlier proceedings and is maintained; in others no PII claim was made in the earlier proceedings but this is said to have been an oversight and such a claim will be made now.
6. The defendant has also identified as relevant to the preliminary issues a number of documents which were disclosed in the judicial review proceedings brought on the application of the present claimant before the current claim for damages was commenced. The defendant has indicated that PII will be claimed in respect of parts of four of these documents. In relation to three of the four documents, a similar claim of PII was made and upheld in the judicial review proceedings.
7. I am told that a PII certificate covering the documents from both the earlier judicial review proceedings is in the course of preparation and will shortly be issued.
8. A hearing to decide whether the defendant's claims for PII in this action should be upheld has been fixed for 22 November 2013. The claimant seeks the appointment of a special advocate to assist the court in determining at that hearing whether the defendant's PII claims are justified.

The Law

9. The relevant legal principles are common ground. The essential question is whether the interests of justice are shown to require the appointment of a special advocate, recognising that this is an exceptional course for the court to adopt: see R v H [2004] 2 AC 134, 151 at para 22; and R (AHK) v Home Secretary [2009] 1 WLR 2049, 2062 at para 35.

The claimant's argument

10. On behalf of the claimant, Mr Jaffey submitted that the interests of justice require the appointment of a special advocate in this case because, in particular, of its complex and unusual procedural history. A fair resolution of the PII claims, he argued, will require knowledge and analysis of the similar PII issues that arose in the earlier judicial review proceedings. For example, in order to test the defendant's assertion that the omission to claim PII in relation to some parts of documents disclosed in the Maya Evans proceedings was inadvertent, Mr Jaffey suggested that it would be relevant to consider the reasons given for claiming PII in respect of other documents in those proceedings to see whether there was consistency. Special advocates (leading and junior counsel) were instructed in both the earlier judicial review proceedings. The court would be greatly assisted, in the claimant's submission, by the appointment in this case of one of the same advocates (the junior counsel) so as to obtain the benefit of her experience and knowledge of the PII claims made in the earlier, similar litigation.
11. Mr Jaffey further submitted that a special advocate can serve an invaluable role in carrying out a search to check whether any of the material for which PII is claimed is already in the public domain. He said that checks carried out by the claimant's solicitors have already identified that five documents from the Maya Evans proceedings for which the defendant has indicated that PII will be claimed were referred to in open court in those proceedings. This check could be made because the documents in question are already in the claimant's possession. In the case of other documents, however, the claimant does not have that advantage. It is said that only a special advocate can therefore carry out a proper public domain search.

Decision

12. I was initially attracted by the prospect that appointing a special advocate in this case could, perhaps unusually, involve a saving of time and cost because of the overlap with the earlier judicial review proceedings and the fact that the special advocate would be someone who had acted in those proceedings. However, on consideration, I am not persuaded that the interests of justice require a special advocate. That is because the number of documents in respect of which PII claims are made is relatively small, the grounds on which PII is claimed (principally operational security and the protection of sources) are well established heads of public interest and raise no issues of principle, and in some cases PII claims have already been considered and upheld by the court. Furthermore, the aspects of the preliminary issues to which the documents are potentially relevant are of very limited compass and, at least as I presently perceive the case, are far from being central to the preliminary issues.
13. In the case of the documents previously disclosed in the Maya Evans proceedings, the claimant's solicitors are – as I have mentioned – in the unusual position of already being in possession of unredacted copies of the documents for which PII is now to be claimed. The defendant has confirmed through Mr James Eadie QC that the proposed redactions will be identified to the claimant before the PII hearing. It seems to me that in relation to these documents the claimant should be able to participate effectively in the hearing, the relevant part of which can be held in private, as well as being able to carry out a full public domain search. I do not consider that the claimant will be materially disadvantaged by not being told the grounds on which PII is claimed which are likely, if the claims are well founded, to be apparent from the nature of the material in question.
14. I also find it difficult to see that analysis of the grounds on which PII was claimed over other documents in the earlier proceedings is likely to be of any real relevance. The essential question, as it seems to me, will be whether or not the claims made now are justified.
15. I accept that the claimant's solicitors will be restricted in their ability to carry out a full public domain search in relation to other documents – in particular the 24 documents which are the subject of the existing certificates. I will expect, however, to receive assurances at the hearing on 22 November 2013 from the defendant's solicitors that they have carried out such searches and to be given details of the searches which they have undertaken.
16. As I see it, the court's task in deciding whether the defendant's PII claims in this case are justified should be a relatively short and straightforward one. There is nothing exceptional about the case which calls for the assistance of a special advocate. I must therefore decline the claimant's request that I invite the Attorney General to appoint one.