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
		08/07/2014

MR JUSTICE MITTING :

1. Under Section 6(1) of the Justice and Security Act 2013 the High Court, when seised of civil proceedings, may declare that a closed material application may be made to the Court. The application is for permission not to disclose material otherwise than to the Court or a special advocate: Section 8(1)(a). The Court may make a declaration if two conditions are met. For present purposes they are set out in Section 6(4)(a) or (b)(i) and (5) and are,

i) that the defendant (by re-amendment the Secretary of State for the Home Department) would be required to disclose sensitive material, that is to say material the disclosure of which would be damaging to the interests of national security (see the definition in Section 6(11)) but for the possibility of a claim for public interest immunity in relation to it.

ii) it is in the interests of the fair and effective administration of justice in the proceedings to make the declaration.

2. The defendant has made such an application in a case brought by a man who claims to have been an agent of the Royal Ulster Constabulary and/or Special Branch in Northern Ireland between 1987 and 1991 and by his current partner. He claims that after his cover was blown and he escaped kidnapping by the Provisional IRA he lived in Tyne and Wear under an assumed identity until an assassination attempt was made against him in 1999. Thereafter, he claims that he was the recipient of advice and assistance from the UK State to protect him from further risks to his life and safety. By this claim he seeks to prove that the arrangements which resulted did not adequately fulfil promises made to him by State officials of financial and non-financial support. In consequence, he claims he has not received payments to which he is entitled and his health has been impaired. He also claims that his security may have been compromised by errors in the manner in which he was protected. His partner, the second claimant, claims that she has been caused distress and impairment to her mental health by the same events.
3. The defendant has filed a defence in which she neither admits nor denies the first claimant's allegations. She has applied for a declaration under Section 6 to permit her to deploy her case with the aid of sensitive material. Her application is opposed by the claimants. Miss Kaufmann QC submits on their behalf that the sensitive material could be adequately protected by holding all or part of any hearings in private under CPR 39.2(3)(b). The claimants also apply for an order, to be considered before the defendant's application under Section 6, that the defendant be required to plead openly and in detail to the specific allegations made against her in the Particulars of Claim, as required by CPR 16.5. The foundation for this application is that the defendant's assertion that the interests of national security require her neither to confirm nor to deny that the claimant was an agent is untenable. Miss Kaufmann invites me to decide this issue first, before considering the defendant's application under Section 6.
4. I decline to do so for both principled and pragmatic reasons. The principled reason is that there is no statutory procedure for me to consider the claimant's application in the light of closed material which I have read which bears upon it. That closed material is capable of affecting the eventual decision on this issue. I acknowledge the force of Miss Kaufmann's submission, but do not consider that I can, in fairness to the defendant, determine it without taking into account closed material. Miss Kaufmann submits that I can treat her application as ancillary to the defendant's Section 6 application. As a matter of principle, I do not agree. Parliament has identified in Section 11(4) what proceedings are to be treated as Section 6 proceedings for the purposes of Sections 8 – 10. They do not include an application by a claimant to require a defendant to file a detailed open defence, save by relying on material that is fully open. Of greater weight are the pragmatic reasons for declining to adopt this course. Section 6(6) provides that the two conditions which must be satisfied, to which I have referred above, "are met if the Court considers that they are met in relation to any material that would be required to be disclosed". I am satisfied that there is material which would be required to be disclosed which relates to important issues in the proceedings. In paragraphs 18, 20 and 21 of the Particulars of Claim, the claimants identify respects in which they say that their protection was mishandled. To answer that part of the claimant's case, the defendant would, in my judgment, have to rely on details of the means by which protection can be afforded to those at risk and of the training of handlers. It is obvious that those details cannot be put into the public domain or revealed to those who have not been the subject of developed vetting or, exceptionally, accepted to be completely trustworthy without the need for vetting (such as judges). Miss Kaufmann submits that, if necessary, the second claimant, herself and her junior and one or more members of the firm of solicitors who instruct them, would be willing to submit to such vetting. The first claimant, she submits, can be taken to be a trustworthy recipient of such information. There are a number of problems with this suggestion: the process of vetting is highly intrusive and would take months; the second claimant, whose mental health is said to be fragile, might not welcome such intrusions; and if the defendant considered that the first claimant could not be trusted with such information, someone, presumably a judge, would have to determine whether or not he could be. That would be likely to require oral evidence and it would require material which may be sensitive material, in the statutory definition, to be considered. That would require a Section 6 declaration in itself. Such a procedure is cumbersome and may well be unattainable. In any event, it would not satisfy the defendant's proper insistence upon keeping such techniques closely guarded within the intelligence community.
5. I am satisfied that, at least in relation to sensitive material relating to the means by which protection can be afforded and the training of handlers, the first condition identified in Section 6(4)(a) or (b)(i) is satisfied. I am also satisfied under Section 6(5) that it is in the interests of the fair and effective administration of justice to make a declaration under Section 6, because, as paragraphs 18, 20 and 21 of the Particulars of Claim demonstrate, the issues to which this material relates form a significant part of the claimant's case. This part of the case could not effectively and justly be determined without it. I am also satisfied that the Secretary of State has considered whether or not to make a claim for public interest immunity in respect of this material under Section 6(7).
6. This case raises many and difficult problems, only some of which have been identified above. It is a case in which the statutory obligation to keep the declaration under review imposed by Section 7(2) is not just a formal obligation. Despite the legal effort that has been devoted to the NCND question, the most difficult issue to be resolved will be how to deal with the detail of the claimant's case against his claimed handlers. In the ordinary case, if the detailed account of a claimant is in issue, it will be resolved by direct confrontation between him and witnesses whose account of events contradicts, or differs from, his. If that is not possible, a decision will have to be made as to whether or not such an issue can be justly determined at all; and if so, how. These difficult issues are better decided under the umbrella of Section 6 proceedings and not otherwise; and to be decided when both sides' case has been fully deployed. I have considered whether or not to defer consideration of the Secretary of State's application until after she has produced, in closed initially, her full case, but am satisfied that it is better to embark on the Section 6 process now and to deal with the difficulties which it creates to the fair trial of the issues by the process of review and the use of the techniques afforded by Section 8(3).
7. Accompanying this judgment is a proposed order for the further conduct of the case. I would welcome submissions in writing on it and will decide whether or not to convene an oral hearing before making an order. The timetable proposed is based on experience of other cases in which a closed material procedure has been used.