JUDGMENT
Al Rawi and others (Respondents) v The Security
Service and others (Appellants)
before
Lord Phillips, President
Lord Hope, Deputy President
Lord Rodger
Lady Hale
Lord Brown
Lord Mance
Lord Kerr
Lord Clarke
Lord Dyson
JUDGMENT GIVEN ON
13 July 2011
Heard on 24 and 25 January 2011
Appellant Respondent (Omar
Deghayes)
Jonathan Crow QC Dinah Rose QC
Rory Phillips QC
Karen Steyn
Daniel Beard
Peter Skelton
Richard Hermer QC
Charlotte Kilroy
(Instructed by Treasury
Solicitors)
(Instructed by Birnberg
Peirce and Partners)
Interveners (JUSTICE and
Liberty)
Intervener
John Howell QC Lord Lester QC
Naina Patel Guy Vassall-Adams
(Instructed by Herbert
Smith LLP)
(Instructed by Guardian
News & Media Legal
Department)
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LORD DYSON
Introduction
1. The issue that arises on this appeal is whether the court has the power to
order a “closed material procedure” as described in the preliminary issue that was
tried by Silber J for the whole or part of the trial of a civil claim for damages and,
if so, in what circumstances it is appropriate to exercise the power. The
preliminary issue was in these terms:
“Could it be lawful and proper for a court to order that a ‘closed
material procedure’ (as defined below) be adopted in a civil claim
for damages?
Definition of ‘closed material procedure’
A ‘closed material procedure’ means a procedure in which
(a) a party is permitted to
(i) comply with his obligations for disclosure of
documents, and
(ii) rely on pleadings and/or written evidence and/or oral
evidence
without disclosing such material to other parties if and to the extent
that disclosure to them would be contrary to the public interest (such
withheld material being known as ‘closed material’), and
(b) disclosure of such closed material is made to special
advocates and, where appropriate, the court; and
(c) the court must ensure that such closed material is not
disclosed to any other parties or to any other person, save where it is
satisfied that such disclosure would not be contrary to the public
interest.
For the purposes of this definition, disclosure is contrary to the
public interest if it is made contrary to the interests of national
security, the international relations of the United Kingdom, the
detection and prevention of crime, or in any other circumstances
where disclosure is likely to harm the public interest.”
2. Silber J answered the question raised by the preliminary issue in the
affirmative: [2009] EWHC 2959 (QB). The Court of Appeal (Lord Neuberger of
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Abbotsbury MR, Maurice Kay and Sullivan LJJ) [2010] EWCA Civ 482, [2010] 3
WLR 1069 allowed the claimants’ appeal and held that the court has no such
power in an ordinary civil claim for damages. The defendants appeal with the
permission of the Supreme Court.
The proceedings
3. The preliminary issue was raised in proceedings in which the claimants
alleged that the Security Service and other organs of the state (the appellants) had
been complicit in the detention and ill-treatment of them by foreign authorities at
various locations including Guantanamo Bay. The pleaded causes of action
included false imprisonment, trespass to the person, conspiracy to injure, torture
and breach of the Human Rights Act 1998. A more detailed exposition of the
factual background is set out in paras 5-6 of the judgment of Lord Neuberger.
4. The appellants filed an open defence in which they admitted that the
claimants had been transferred and detained, but they put in issue the alleged
mistreatment and denied any liability for the claimants’ detention or alleged
mistreatment. At a case management hearing, the appellants said that they were in
possession of material which they wished the court to consider, but which they
would be obliged in the public interest to withhold from disclosure. This material
was contained in a closed defence. The course contended for by the appellants
would require parallel open and closed proceedings and parallel open and closed
judgments. Special advocates would represent the interests of the claimants in the
closed hearings.
5. The claimants objected to this course. They argued that a conventional
public interest immunity (“PII”) exercise should be conducted ex parte by a judge
in relation to the “closed” material. Lord Clarke describes the PII procedure in
detail at para 145 below. In response, the appellants emphasised the difficulties
that would be caused by the vast amount of sensitive material in their possession
and the enormous scale of any PII exercise. The evidence filed on behalf of the
appellants suggested that there might be as many as 250,000 potentially relevant
documents, and that PII might have to be considered in respect of as many as
140,000 of them. It might take three years to complete the exercise of deciding in
respect of which documents PII could properly be claimed.
6. Against this background, directions were sought from the court for the
determination of four preliminary issues. On 24 September 2009, Burnett J ordered
that the first of these issues should be tried first. This was the issue which, in its
final form, is the subject of the present appeal.
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7. After the decision of the Court of Appeal, but before the appeal came on for
hearing before the Supreme Court, the claims were settled on confidential terms.
A question therefore arose as to whether the court should permit the appeal to
continue. It raises an important point of principle which was the subject of a full
and carefully reasoned decision of the Court of Appeal. In my view, it was right to
entertain the appeal. Having had the benefit of full legal argument over a period of
two days, I am in no doubt that the Supreme Court should decide the issue raised
by the preliminary issue so far as it is able to do so.
The positions of the parties in outline
8. The appellants submit that the right to a fair trial is absolute, but the means
of satisfying that right vary according to the circumstances of the case. The
procedures of the court are the means of achieving real justice between the parties.
As a general rule, real justice and a fair trial can only be achieved by open
hearings, open disclosure, each side confronting the other’s witnesses and open
judgments. But in certain circumstances, a closed procedure may be necessary in
order to achieve real justice and a fair trial. Such procedures are adopted in certain
classes of case (for example, cases involving children and confidential
information). There is no reason in principle why in the exercise of its inherent
jurisdiction the court should not be able to order such a procedure in other classes
of case, such as cases where a defendant cannot deploy its defence fully (or
sometimes not at all) if it is required to follow an open procedure. The appellants’
primary case is that a court has the power to substitute, at least in exceptional
cases, a closed material procedure for a conventional PII exercise.
9. The respondent says that open procedures are fundamental to our system of
justice. His case is that a closed material procedure would be such a fundamental
change to the way in which ordinary civil litigation (including judicial review) is
conducted that it should not be introduced by the courts. Any such change can only
be made by Parliament.
The essential features of a common law trial
10. There are certain features of a common law trial which are fundamental to
our system of justice (both criminal and civil). First, subject to certain established
and limited exceptions, trials should be conducted and judgments given in public.
The importance of the open justice principle has been emphasised many times: see,
for example, R v Sussex Justices, Ex p McCarthy [1924] 1 KB 256, at p 259, per
Lord Hewart CJ, Attorney General v Leveller Magazine Ltd [1979] AC 440, at pp
449H-450B, per Lord Diplock, and recently R (Mohamed) v Secretary of State for
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Foreign and Commonwealth Affairs (No 2) (Guardian News and Media Ltd
intervening) [2011] QB 218, paras 38-39, per Lord Judge CJ.
11. The open justice principle is not a mere procedural rule. It is a fundamental
common law principle. In Scott v Scott [1913] AC 417, Lord Shaw of Dunfermline
(p 476) criticised the decision of the lower court to hold a hearing in camera as
“constituting a violation of that publicity in the administration of justice which is
one of the surest guarantees of our liberties, and an attack upon the very
foundations of public and private security.” Lord Haldane LC (p 438) said that any
judge faced with a demand to depart from the general rule must treat the question
“as one of principle, and as turning, not on convenience, but on necessity”.
12. Secondly, trials are conducted on the basis of the principle of natural
justice. There are a number of strands to this. A party has a right to know the case
against him and the evidence on which it is based. He is entitled to have the
opportunity to respond to any such evidence and to any submissions made by the
other side. The other side may not advance contentions or adduce evidence of
which he is kept in ignorance. The Privy Council said in the civil case of Kanda v
Government of Malaya [1962] AC 322, 337:
“If the right to be heard is to be a real right which is worth anything,
it must carry with it a right in the accused man to know the case
which is made against him. He must know what evidence has been
given and what statements have been made affecting him: and then
he must be given a fair opportunity to correct or contradict them.”
13. Another aspect of the principle of natural justice is that the parties should be
given an opportunity to call their own witnesses and to cross-examine the opposing
witnesses. As was said by the High Court of Australia in Lee v The Queen (1998)
195 CLR 594, at para 32: “Confrontation and the opportunity for crossexamination is of central significance to the common law adversarial system of
trial.”
14. I do not believe that any of this is controversial, but it needs to be
emphasised because, unlike the law relating to PII, a closed material procedure
involves a departure from both the open justice and the natural justice principles.
In recent years, both the courts and Parliament have been exercised by the problem
of how to balance (i) the interest that we all have in maintaining a fair system of
justice which, so far as possible, respects the essential elements of these principles
and (ii) the interest that we also all have in the protection of national security, the
international relations of the United Kingdom and the prevention, detection and
prosecution of crime. Thus, Parliament has reacted to the threat of terrorism to our
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national security interests by introducing a form of closed material procedure (with
the use of special advocates) for use in certain categories of case, for example, by
enacting the Prevention of Terrorism Act 2005 and the Counter-Terrorism Act
2008.
15. A striking example of a case where the court had to balance these two
competing interests is Carnduff v Rock [2001] EWCA Civ 680, [2001] 1 WLR
1786. A registered police informer brought an action against the police to recover
payment for information and assistance provided to the police. The defendants
denied any contractual liability to make such payments or that any information or
assistance provided by the plaintiff had led to the arrests or the prosecutions
alleged. The claim was struck out by the Court of Appeal on the grounds that a fair
trial of the issues raised by the pleadings would require the police to disclose, and
the court to investigate and adjudicate upon, sensitive information which should in
the public interest remain confidential to the police. Laws LJ (with whom Jonathan
Parker LJ agreed) said at para 36:
“…it is to my mind inevitable that the court’s duty would be to hold
that the public interest in withholding the evidence about it
outweighed the countervailing public interest in having the claim
litigated on the available relevant evidence. In reality such a position
could only be avoided if the police made comprehensive admissions
which absolved the court from the duty to enter into any of these
issues. But a case which can only be justly tried if one side holds up
its hands cannot, in truth, be justly tried at all.”
16. This is the only case that was cited to us in which the court has decided that
the public interest in maintaining confidential information trumps the public
interest in the administration of justice to the extent that on that ground a trial has
been denied altogether.
17. This is the background against which the important issues raised by this
appeal fall to be considered.
The inherent power of the court to regulate its own procedure
18. A distinction should be made at the outset between the court (i) exercising
its inherent power to control its own procedure and (ii) exercising its general
power to develop the substantive common law incrementally. We are not here
concerned with (ii), a paradigm example of which would be the incremental
development by the courts of the law of negligence. We are concerned with (i). In
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his seminal article “The Inherent Jurisdiction of the Court”, Current Legal
Problems 1970, Sir Jack Jacob said: “the source of the inherent jurisdiction of the
court is derived from its nature as a court of law, so that the limits of such
jurisdiction are not easy to define, and indeed appear to elude definition.” But
there is no doubt that the court’s inherent power to regulate its own procedures is
not unlimited. For example, the power may not be exercised in contravention of
legislation or rules of court. In the words of Sir Jack Jacob, loc cit at p 24: “the
court may exercise its inherent jurisdiction even in respect of matters which are
regulated by statute or by rule of court, so long as it can do so without
contravening any statutory provision.” In such a case, its power has been removed
by statute and cannot be exercised.
19. In proceedings which are not regulated by statute or statutory rules, it might
be thought that there are no limits to the inherent power of the court to regulate its
own procedure and that it has an untrammelled power to manage litigation in
whatever way it considers necessary or expedient in the interests of justice.
20. There are many examples of the court in the exercise of its inherent power
introducing procedural innovations in the interests of justice. Thus it invented the
power to grant Mareva injunctions and make Anton Piller orders. These orders
were devised to prevent misuse of the court’s procedure and to ensure that its
procedure is effective. The PII procedure was also a creature of the common law
devised by the court in the exercise of its inherent power to regulate its own
procedures. The remedy of discovery (now known as disclosure) was developed by
the courts of equity in order to aid the administration of justice. Upon the
amalgamation of the Court of Chancery and the common law courts into the High
Court by the Judicature Acts, that remedy came to be governed by the Rules of
Court. It is now contained in CPR Part 31. The rules governing disclosure
recognised that conflict may arise between the public interest in the administration
of justice and other public interests which preclude the disclosure of all relevant
materials. The law of PII was developed to deal with such situations. The court
was exercising its inherent power in controlling its own procedures by deciding the
scope of disclosure in cases involving confidential material. The scope of
disclosure has long been seen as a matter on which the court has jurisdiction to
decide.
21. But even in an area which is not the subject of statute or statutory
procedural rules, there are limits to the court’s inherent jurisdiction to regulate how
civil and criminal proceedings should be conducted. In my view, there is
considerable force in what Professor Martin Dockray said in “The Inherent
Jurisdiction to Regulate Civil Proceedings” (1997) 113 LQR 120, 131:
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“….a matter which is procedural from the position of an applicant
may be constitutional in the eyes of the respondent. The fact that
procedural law can be described as subordinate or adjectival because
it aims to give effect to substantive rules should not conceal the truth
that procedures can and do interfere with important human rights,
while the means by which a decision is reached may be just as
important as the decision which is made in the end. Where procedure
is as important as substance, procedural change requires the same
degree of political accountability and economic and social foresight
as reform of an equivalent rule of substantive law. Major innovations
in procedural law should therefore be recognised as an institutional
responsibility, not a matter on which individual judges should
respond to the pleas of particular litigants. Procedural revolutions
should appear first in statutes or in the Rules of Court, not in the law
reports. ”
22. For example, it is surely not in doubt that a court cannot conduct a trial
inquisitorially rather than by means of an adversarial process (at any rate, not
without the consent of the parties) or hold a hearing from which one of the parties
is excluded. These (admittedly extreme) examples show that the court’s power to
regulate its own procedures is subject to certain limitations. The basic rule is that
(subject to certain established and limited exceptions) the court cannot exercise its
power to regulate its own procedures in such a way as will deny parties their
fundamental common law right to participate in the proceedings in accordance
with the common law principles of natural justice and open justice. To put the
same point in a different way, the court must exercise the power to regulate its
procedure in a way which respects these two important principles which are
integral to the common law right to a fair trial.
Discussion
Is there a common law power to require a closed material procedure?
23. Mr Crow QC submits that the PII system suffers from five serious defects.
These are that (i) the balancing exercise is inherently difficult to perform, because
the two public interests are fundamentally different (it involves, as he put it, a
comparison of apples and pears); (ii) if the balance is struck against disclosure,
relevant evidence is excluded from the trial (thereby reducing the chances that the
court will reach the right result); (iii) the party holding the sensitive undisclosed
material knows its contents which may inform its preparation and/or conduct of the
trial, thereby putting it at an unfair advantage over the other party; (iv) if the
balance is struck in favour of disclosure, the party holding the material that is
ordered to be disclosed is faced with the invidious choice of disclosing the
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material, despite the harm that this would or might cause to the public interest, or
refusing disclosure and facing the possibility of having to concede the whole of the
other side’s case. As Carnduff demonstrates, the court may be faced with the stark
choice between depriving a defendant of the means to defend himself and striking
out the claim on the grounds that it is untriable; and (v) the scale of the PII
exercise is sometimes so vast that it can take years to complete. As regards (v), as
already pointed out, it is said that in the present case as many as 140,000
documents may have to be the subject of the PII process: a massive and expensive
task which will inevitably mean that it will not be possible for the trial to take
place for a very long time.
24. Mr Crow submits that the closed material procedure does not suffer from
these defects. If such a procedure is adopted, the court is able to see and take into
account at trial relevant material (written and oral) whose disclosure would,
applying the PII principles, be excluded from the trial process altogether,
regardless of whether the material is of assistance to the claimant or the defendant.
If the balancing exercise favours non-disclosure, the defendant may have no
adequate basis to defend itself in reliance on the open material when, if the truth
were known and the sensitive material were referred to, it had a complete answer
to the claim. The court would be able to review relevant material in the overall
interests of justice and to do so with the assistance of special advocates who would
be able to make submissions on behalf of the party from whom open disclosure
was being withheld. In short, in an appropriate case, a closed procedure is more
likely than PII to achieve justice through a fair trial.
25. Since the shortcomings in the PII process to which Mr Crow draws
attention are inherent in the process and are of general application, the logic of his
arguments ought to lead to the conclusion that the court should exercise its power
in most if not all cases to adopt a closed material procedure rather than PII. But
his submission is more modest. He seeks to secure from the court no more than an
acknowledgement that, in principle, the court has the power to adopt the closed
material procedure and that it should exercise that power in exceptional cases
where this is necessary in the interests of justice. He derives the necessity test from
Scott v Scott per Lord Haldane LC at p 436.
26. Scott v Scott was addressing the very important principle that justice should
be administered in public and recognised that there may be a departure from that
principle where that is necessary in the interests of justice.
27. It is one thing to say that the open justice principle may be abrogated if
justice cannot otherwise be achieved. As Lord Bingham of Cornhill said in R v
Davis [2008] UKHL 36, [2008] AC 1128 at para 28, the rights of a litigating party
are the same whether a trial is conducted in camera or in open court and whether or
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not the course of the proceedings may be reported in the media. It is quite a
different matter to say that the court may sanction a departure from the natural
justice principle (including the right to be present at and participate in the whole or
part of a trial). Scott v Scott is no authority for such a proposition. How can such a
step ever satisfy the requirements of justice? And if the court does have the power
to deny a litigant this fundamental common law right, in what circumstances is it
appropriate to exercise it? These are the questions that lie at the heart of this
appeal.
28. Before attempting to answer these questions, I think that it is instructive to
consider Davis in more detail. It concerned the question whether the judge at a
criminal trial could permit witnesses to give evidence for the prosecution under
conditions of anonymity. The perceived need for anonymity arose because, owing
to threats of intimidation, the witnesses would not be willing to give their evidence
without it. In the Court of Appeal [2006] 1 WLR 3130, para 13, Sir Igor Judge P
said that the court possesses an inherent jurisdiction at common law to control its
own proceedings, if necessary by adapting and developing its existing processes
“to defeat any attempted thwarting of its process”: see per Lord Morris of Borth-yGest in Connelly v Director of Public Prosecutions [1964] AC 1254, 1301. The
court concluded that the anonymity ruling did not prevent proper investigation
with the witnesses in open court of the essential elements of the defence.
29. The House of Lords disagreed. Lord Bingham referred at para 5 to the
“long-established principle of the English common law that, subject to certain
exceptions and statutory qualifications, the defendant in a criminal trial should be
confronted by his accusers in order that he may cross-examine them and challenge
their evidence”. The authorities to which Lord Bingham referred at para 5 in
support of this proposition were in the field of both criminal and civil law. Thus,
for example, in 1720 in a civil case the court declared in Duke of Dorset v Girdler
(1720) Prec Ch 531, 532 that “the other side ought not to be deprived of the
opportunity of confronting the witnesses, and examining them publicly, which has
always been found the most effectual method for discovering of the truth.”
30. In rejecting the conclusion of the Court of Appeal, Lord Bingham said at
para 34 that at no point in its judgment did the Court of Appeal “acknowledge that
the right to be confronted by one’s accusers is a right recognised by the common
law for centuries, and it is not enough if counsel sees the accusers if they are
unknown to and unseen by the defendant.”
31. It is worthy of note that the House of Lords reached its decision in the face
of arguments advanced on behalf of the Crown which included (i) the problem of
witness intimidation is real and prevalent and, unless witnesses are allowed to give
evidence under conditions of anonymity, dangerous criminals will walk free and
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society and the administration of justice will suffer; (ii) as Lord Haldane LC said
in Scott v Scott, the paramount object must always be to do justice and if, in order
to do justice, some adaptation of ordinary procedure is called for, it should be
made, so long as the overall fairness of the trial is not compromised; and (iii) the
Strasbourg jurisprudence does not condemn the use of measures to protect
witnesses. These arguments did not prevail. The common law right to be
confronted by one’s accusers (an essential element of a fair trial) could not be
abrogated by the courts. Any such abrogation was a matter for Parliament. Lord
Bingham said at para 28 that it was pertinent to recall the observations of Lord
Shaw in Scott at pp 477-478: “There is no greater danger of usurpation than that
which proceeds little by little, under cover of rules of procedure, and at the
instance of judges themselves.” Lord Rodger of Earlsferry said at para 45 that
Parliament was the proper body to decide whether a change in the law on the way
that witnesses gave their evidence where intimidation is a problem was required,
and, if so, to devise an appropriate system which still ensures a fair trial. Lord
Brown of Eaton-under-Heywood said at para 66 that it was for the government to
decide whether to legislate in the field. Meanwhile, the emasculation of the
common law principle must not only be halted but reversed. And Lord Mance
made similar observations at para 98.
32. Lord Brown at para 78 of his judgment in the present case suggests that
there is a real difference between this case and Davis in that legislation to meet the
problem was envisaged in Davis, whereas it is highly doubtful whether Parliament
will legislate speedily to introduce a closed procedure. But I do not think that the
House of Lords’ principled refusal to abrogate the common law right to be
confronted by one’s accusers can be explained by reference to a belief that
Parliament would speedily intervene to resolve the problem.
33. The House did not state whether the protective measures imposed by the
trial judge were ones which the court had no power to impose, or whether,
although the power existed, it was inappropriate to exercise it. That is no doubt
because it makes no practical difference. Lord Bingham was content to say at para
35 that the protective measures “hampered the conduct of the defence in a manner
and to an extent which was unlawful and rendered the trial unfair”.
34. It is not difficult to see the similarities between the arguments that were
rejected by the House of Lords in Davis and those advanced by Mr Crow. The
problem here is not that dangerous criminals will walk free. It is that in sensitive
material cases, parties will not be able to develop their true case on the basis of all
the relevant material with the result that parties will sometimes lose cases that they
should win. A defendant who is ordered to disclose sensitive material on a PII
hearing has the invidious choice of disclosing material that will damage some
important public interest or making admissions and, in an extreme case, conceding
the claim.
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35. I return to the questions that lie at the heart of this appeal. In my view, the
analogy with Davis is compelling. As I have said, the fact that Davis was a
criminal case is not material. The issues considered were of application to trials
generally. It decided that, subject to certain exceptions and statutory qualifications,
the right to be confronted by one’s accusers is such a fundamental element of the
common law right to a fair trial that the court cannot abrogate it in the exercise of
its inherent power. Only Parliament can do that. The closed material procedure
excludes a party from the closed part of the trial. He cannot see the witnesses who
speak in that part of the trial; nor can he see closed documents; he cannot hear or
read the closed evidence or the submissions made in the closed hearing; and finally
he cannot see the judge delivering the closed judgment nor can he read it.
36. Can all of these flaws be cured by a special advocate system? No doubt,
special advocates can mitigate these weaknesses to some extent and in some cases
the litigant may be able to add little or nothing to what the special advocate can do.
For example, this will be the case where the litigant has no knowledge of the
matters to which the closed material relates and can give no instructions which will
enable the special advocate to perform his function more effectively. But in many
cases, the special advocate will be hampered by not being able to take instructions
from his client on the closed material. A further problem is that it may not always
be possible for the judge (even with the benefit of assistance from the special
advocate) to decide whether the special advocate will be hampered in this way.
37. The limitations of the special advocate system, even in the context of the
statutory contexts for which they were devised, were highlighted by the Joint
Committee on Human Rights in their report on Counter-Terrorism Policy and
Human Rights (Sixteenth report): Annual Renewal of Control Orders Legislation
2010 (HL Paper 64/HC 395) (dated 26 February 2010) in the context of the
Prevention of Terrorism Act 2005 and cases heard by the Special Immigration
Appeals Commission. This report was based on the first-hand experience of those
who have acted as special advocates. As the Court of Appeal noted at para 57, it is
the Committee’s view after five years of operation that the closed material
procedure (with special advocates) operated under the statutory regimes is not
capable of ensuring the substantial measure of procedural justice that is required.
At para 210 of its earlier report, HL Paper 157, HC 394, (published on 30 July
2007), the Committee had concluded:
“After listening to the evidence of the Special Advocates, we found
it hard not to reach for well worn descriptions of it as ‘Kafkaesque’
or like the Star Chamber. The Special Advocates agreed when it was
put to them that, in the light of the concerns they had raised, ‘the
public should be left in absolutely no doubt that what is
happening…has absolutely nothing to do with the traditions of
adversarial justice as we have come to understand them in the British
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legal system.’ Indeed, we were left with the very strong feeling that
this is a process which is not just offensive to the basic principles of
adversarial justice in which lawyers are steeped, but it is very much
against the basic notions of fair play as the lay public would
understand them. ”
These views may not sufficiently take account of specific statutory protections,
(such as those set out in rule 54 of the Employment Tribunals Rules of Procedure
contained in Schedule 1 to the Employment Tribunals (Constitution and Rules of
Procedure) Regulations 2004 (SI 2004/1861)) to which Lord Mance refers at para
10 of his judgment in Tariq v Home Office [2011] UKSC 35 but they do throw
light on the limitations of the special advocate system.
38. In my view, Mr Crow provided no satisfactory answer to the questions (i)
why it is necessary to introduce a procedure which would deprive a litigant of his
fundamental common law rights or (ii) in what circumstances the power to order a
closed material procedure should be exercised. Since he disavows the wholesale
replacement of PII with the closed procedure, it is difficult to see the relevance of
the defects alleged by him in the one and the advantages he claims for the other.
As regards the problem of the time-consuming exercise that has to be performed in
a PII process, I agree with what Lord Clarke says at para 152 of his judgment: a
closed procedure would not achieve any saving.
39. Mr Crow’s answer to the two questions that I have posed is that the court
has the power to order a closed material procedure in exceptional cases where this
is necessary in the interests of justice. But this simply prompts the further question:
in what circumstances can it ever be in the interests of justice to deny a litigant in
ordinary civil claims (including claims for judicial review) the rights which are
entrenched in our common law system as being fundamental requirements of
justice itself? I deal with special cases at paras 63 to 65 below. Mr Crow did not
give a concrete example of a case where the court would or might exercise this
exceptional power. This amply demonstrates that the test that he proposes is vague.
It is likely to cause uncertainty in the minds of litigants and their advisers and to
lead to unwelcome satellite litigation.
40. Lord Clarke agrees that the court has the power to order a closed procedure
where this is necessary in the interests of justice, and at paras 159 to 164 and 178
to 181 he suggests circumstances in which it may be appropriate to exercise the
power. He says that, in the exercise of its inherent jurisdiction, the court has the
power after the PII process has been completed to order some form of closed
procedure involving special advocates. Thus the claimants might seek a closed
procedure if they thought that there were advantages in such a procedure,
especially if their case was thought to depend to any significant extent on
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documents in the possession of the defendants. The defendants might also wish to
have such a procedure depending on the circumstances. Lord Clarke says that the
court has adopted novel procedures in not dissimilar situations by way of
development of the common law and pursuant to its obligation under CPR Part 1
to deal with cases justly. There is no reason why the common law should not be
able to develop along these lines. It would be a “development of the common law
of PII”.
41. I respectfully disagree with this approach. First, no form of closed material
procedure can properly be described as a development of the common law of PII,
although there is no objection to the use of special advocates to enhance the PII
process (see para 49 below). In many ways, a closed procedure is the very
antithesis of a PII procedure. They are fundamentally different from each other.
The PII procedure respects the common law principles to which I have referred. If
documents are disclosed as a result of the process, they are available to both
parties and to the court. If they are not disclosed, they are available neither to the
other parties nor to the court. Both parties are entitled to full participation in all
aspects of the litigation. There is no unfairness or inequality of arms. The effect
of a closed material procedure is that closed documents are only available to the
party which possesses them, the other side’s special advocate and the court. I have
already referred to the limits of the special advocate system.
42. Secondly, it is obviously true that party A who is in possession of the closed
material will know whether there is material on which it may wish to rely and will
therefore be in a position to decide whether to ask the court to order a closed
procedure in relation to that material. But it is difficult to see how opposing party
B will know whether his case will be assisted by, or even depend to a significant
extent on, the closed material held by A without knowing what the material is and
what it contains. If a special advocate is appointed, he might be able to assess the
importance of some of the documents, but the scope for doing so without being
able to take instructions from B is bound to be limited. It follows that, if the power
to order a closed material procedure turns on such considerations, it is likely to
operate in favour of A and to the disadvantage of B. In my view, this is an
approach which is inherently unfair. It is certainly not necessary in the interests of
justice.
43. Thirdly, it is difficult to see how on the suggested approach the court would
be able to judge whether to order a closed procedure in any particular case. Would
the court be called upon to decide whether the closed documents are likely to
advance the case of one or other of the parties and, if so, how would it do this and
what test would it apply? Would the material have to be crucial to the case of the
party seeking the closed procedure or would it be sufficient that it provides some
support for it? This is not an exercise that the court should be required to perform.
It would be likely to give rise to argument about whether the closed material is or
Page 15
is not likely to help the cause of the party seeking to invoke the procedure. It
would be a recipe for satellite litigation. It would merely add to the complexity
and expense of the whole process.
44. Fourthly, to allow a closed procedure in circumstances which are not clearly
defined could easily be the thin end of the wedge. This is the point that was made
by Lord Shaw in his celebrated speech in Scott v Scott (see para 31 above). Mr
Crow’s undefined exceptional circumstances in the interest of justice could
develop into something more defined and exorbitant. So too could Lord Clarke’s
suggested approach. This would be a big step for the law to take in view of the
fundamental principles at stake. In my view, this is a matter for Parliament and not
the courts.
45. Fifthly, like Lord Clarke (subject to the one qualification that he mentions –
as to which I express my views at paras 60 and 61 below), I accept the
fundamental principles stated by the Court of Appeal at para 70 of its judgment
which he has quoted at para 167 below. But in my view these principles do not sit
happily with what he proposes. A closed procedure in the circumstances that he
suggests would cut across the fundamental principles of the right to a fair trial and
the right to know the reasons for the outcome. It would complicate a wellestablished procedure for dealing with the problem, namely the PII procedure.
And for the reasons that I have given would be likely to add to the uncertainty,
cost, complexity and delay of all stages of the litigation.
46. As I understand it, Lord Mance (with whom Lady Hale agrees) adopts the
view of Lord Clarke that the closed material procedure should not be an alternative
to PII, but that it may be ordered in addition to PII in certain circumstances. They
differ, however, over the circumstances in which a closed procedure may be
ordered. Lord Mance limits himself to cases where closed material is in the
defendant’s possession and the claimant, in order to avoid his or her claim being
struck out, consents to a closed material procedure. The differences between them
show that different views may be held as to how the test of “necessity” should be
applied in this context. These differences lend further support to the view that, if a
closed material procedure is to be available in ordinary civil claims, the decision as
to when it might be “necessary” for such a procedure to be used should be left to
Parliament. I should make it clear that, like the Court of Appeal (para 71), I leave
open the question whether a closed material procedure can properly be adopted
where the parties agree. We heard no argument on this point.
47. Closed material procedures and the use of special advocates continue to be
controversial. In my view, it is not for the courts to extend such a controversial
procedure beyond the boundaries which Parliament has chosen to draw for its use
thus far. It is controversial precisely because it involves an invasion of the
Page 16
fundamental common law principles to which I have referred. I would echo what
Lord Phillips said in Secretary of State for the Home Department v AF (No 3)
[2009] UKHL 28, [2010] 2 AC 269. It is true that this was a case concerning the
requirements of a fair trial under article 6 of the European Convention on Human
Rights, but in my view it is equally applicable in relation to the common law
requirements of a fair trial. At para 64, he said that the best way of producing a fair
trial is to ensure that a party has the fullest information of the allegations against
him and the evidence (both oral and documentary) that is relied on in support of
those allegations. Both our criminal and civil procedures set out to achieve those
aims. In some circumstances, however, they run into conflict with other aspects of
the public interest. He then said:
“How that conflict is to be resolved is a matter for Parliament and for
government, subject to the law laid down by Parliament”.
48. The common law principles to which I have referred are extremely
important and should not be eroded unless there is a compelling case for doing so.
If this is to be done at all, it is better done by Parliament after full consultation and
proper consideration of the sensitive issues involved. It is not surprising that
Parliament has seen fit to make provision for a closed material procedure in certain
carefully defined situations and has required the making of detailed procedural
rules to give effect to the legislation.
49. There is no compelling reason for taking the course that is urged by Mr
Crow or that which is suggested by Lord Clarke. The PII process is not perfect.
Perfection cannot be achieved in any system. It has been improved over time as the
history of its development shows. One particular development to note is the use of
special advocates to enhance the PII process. There can be no objection to the use
of special advocates for that purpose, since the PII process fully respects the
principles of open justice and natural justice. There is nothing objectionable about
excluding a party from the PII process. There can, therefore, be no objection to
improving the position of that party in the process by the use of a special advocate.
50. It is true that, if a closed material procedure were introduced, it might not be
necessary to strike out a claim such as Carnduff. Looked at in isolation, that would
be a good thing. But the problem cannot be looked at so narrowly and in any event
it seems that cases such as Carnduff are a rarity. They do not pose a problem on a
scale which provides any justification (let alone any compelling justification) for
making a fundamental change to the way in which litigation is conducted in our
jurisdiction with all the attendant uncertainties and difficulties that I have
mentioned.
Page 17
Previous authority
51. As in the Court of Appeal, so here Mr Crow relies on a number of previous
authorities where the use of special advocates in a closed material procedure was
approved. These were discussed by the Court of Appeal at paras 58 to 66 of their
judgment. Lord Clarke suggests at para 166 below that the Court of Appeal
distinguished these cases on the basis that they were not ordinary “civil” claims.
But that was not the only reason given by the Court of Appeal for refusing to
follow those decisions. In none of the cases was proper consideration given to the
question whether a closed material procedure was a permissible development of
the common law.
52. Thus, in Secretary of State for the Home Department v Rehman [2001]
UKHL 47, [2003] 1 AC 153, para 31 Lord Woolf MR stated (obiter) that, albeit
only “in the most extreme circumstances”, the Court of Appeal could hear
submissions in the absence of a party and his counsel under the inherent
jurisdiction of the court on the basis that the party’s interests could be protected by
a special advocate. But there is no suggestion that the contrary was argued.
53. R v Shayler [2002] UKHL 11, [2003] 1 AC 247 was concerned with a
preparatory hearing in relation to a defendant who was charged with unauthorised
disclosure of material under the Official Secrets Act 1989. A question arose as to
whether the defendant could disclose the material to his lawyers. At para 34, Lord
Bingham said that, following what Lord Woolf said in Rehman, in the unlikely
event of the court having to consider the material which could not be disclosed to
the defendant’s lawyers, a special advocate could be appointed. As the Court of
Appeal said at para 61, there would have been no question of the defendant
himself being in ignorance of the material or of his being excluded from the
hearing where it was considered. It was, therefore, not a closed material procedure
at all. In any event, what Lord Bingham said was based on para 31 of Rehman and
does not appear to have been the subject of contrary argument.
54. In R v H [2004] UKHL 3, [2004] 2 AC 134 at para 22, Lord Bingham made
some observations about the use of a special advocate in a PII procedure. But as
discussed at para 49 above, that is not the kind of closed material procedure with
which we are concerned.
55. In R (Roberts) v Parole Board [2005] UKHL 45, [2005] 2 AC 738, the
Parole Board decided that evidence on which the Home Secretary intended to rely
should be heard in the absence of, and not disclosed to, the claimant or his legal
representatives, since to do so would put an informant at risk. Instead they directed
that the evidence should be disclosed only to a special advocate. The Board had
Page 18
express power under the relevant rules to withhold material which otherwise had to
be served on a prisoner. In other words, there was express statutory power to adopt
a closed material procedure. One of the issues was whether there was power to
require a special advocate. The Board had power under paragraph 1(2)(b) of
Schedule 5 to the Criminal Justice Act 1991 to do anything incidental or conducive
to the discharge of its functions. It was held that appointing a special advocate to
mitigate the adverse effects of the closed procedure would be an exercise of that
power. Roberts, therefore, provides no basis for concluding that a court may
determine a civil claim on its merits using a closed material procedure in the
absence of a specific enactment authorising it to do so.
56. In R (Malik) v Manchester Crown Court [2008] EWHC 1362 (Admin),
[2008] 4 All ER 403, when giving the judgment of the Divisional Court, I
reviewed a number of the authorities about the use of special advocates. But as the
Court of Appeal said at para 64, no argument was advanced that the Crown Court
had no power to order a closed material procedure in the absence of an enactment
enabling it to do so. The sole question was whether the court should have
appointed a special advocate of its own motion.
57. In A v HM Treasury [2008] EWCA Civ 1187, [2009] 3 WLR 25, when
giving the majority judgment of the Court of Appeal, Sir Anthony Clarke MR said
at paras 58 and 60 that in an appropriate case the court would have power to
authorise or request the use of a special advocate even where this was not
sanctioned by Parliament. But here too there does not appear to have been any
argument as to whether the court had power to order a closed material procedure in
the first place.
58. Finally, in R (AHK) v Secretary of State for the Home Department (Practice
Note) [2009] EWCA Civ 287, [2009] 1 WLR 2049 at paras 37-38, Sir Anthony
Clarke MR giving the judgment of the Court of Appeal gave guidance as to the
circumstances in which a special advocate could be appointed. Here too, there was
no debate as to whether the court could order a closed material procedure. It
seems to have been assumed that it could.
59. None of these authorities is binding on this court. In none of them was there
any consideration of the issues which have been considered in detail over two days
of argument by this court. They do not amount to a secure and established line of
authority to support the proposition that the court has power to order a closed
material procedure in the absence of statutory authority.
Page 19
The Civil Procedure Rules
60. At para 43, the Court of Appeal said that they considered that the
defendants faced “very serious difficulties in their contention that the closed
material procedure is compatible with the CPR”. They explained why this was the
case at paras 41 to 48. I see the force of the points made by the Court of Appeal
and they are supported by Ms Rose QC and Mr Howell QC. In short, there are
detailed rules for the filing and service of a defence (CPR r 15.2 and CPR r 16.5);
disclosure (CPR r 31.5); giving of evidence orally (CPR r 32.2) and the provision
of witness statements (CPR r 32.4 and 32.5). There is no provision for the filing
and service of a closed defence or for closed disclosure or the giving of evidence
in a closed hearing or the provision of closed witness statements. By contrast,
CPR Parts 76 and 79 explicitly modify or disapply those Parts of the CPR for the
purpose of the particular proceedings in which Parliament has decided that a
closed material procedure may be used.
61. These points based on the CPR provide some further support for the
conclusion which I have reached for other reasons. The rules make no provision
for a closed procedure except in circumstances where it is authorised by statute.
On the face of it, the general rules are inconsistent with a closed material
procedure. But I do not consider that, if the argument based on the CPR stood
alone, it would have been sufficient to carry the day for the respondent. It is not
sufficiently clear that a closed material procedure would contravene the CPR to
say that on that account the court has no power to order such a procedure.
“Ordinary civil claims”
62. I agree with Lord Clarke, for the reasons that he gives, that there can be no
principled basis for distinguishing between ordinary civil claims and claims for
judicial review. I would accept the submission of Mr Howell that the mere fact
that there may be a public interest involved in the determination of a case does not
mean that the court may disregard the duty imposed on it by the law relating to PII
or may override the fundamental rights of a party to civil litigation recognised at
common law.
63. But I agree that there are certain classes of case where a departure from the
normal rule may be justified for special reasons in the interests of justice. Thus as
Baroness Hale of Richmond said in Secretary of State for the Home Department v
MB [2007] UKHL 46, [2008] AC 440 at para 58:
Page 20
“If….the whole object of the proceedings is to protect and promote
the best interests of a child, there may be exceptional circumstances
in which disclosure of some of the evidence would be so detrimental
to the child’s welfare as to defeat the object of the exercise.”
Wardship proceedings are an obvious example of such a case: see In re K (Infants)
[1965] AC 201, per Lord Devlin at p 241A. Cases involving children raise
different considerations from those which arise in ordinary civil litigation. That is
because the interests of children are paramount. It follows that where the interests
of the child are served, so too are the interests of justice.
64. Similarly, where the whole object of the proceedings is to protect a
commercial interest, full disclosure may not be possible if it would render the
proceedings futile. This problem occurs in intellectual property proceedings. It is
commonplace to deal with the issue of disclosure by establishing “confidentiality
rings” of persons who may see certain confidential material which is withheld
from one or more of the parties to the litigation at least in its initial stages. Such
claims by their very nature raise special problems which require exceptional
solutions. I am not aware of a case in which a court has approved a trial of such a
case proceeding in circumstances where one party was denied access to evidence
which was being relied on at the trial by the other party.
65. In my view, the children and confidentiality cases cannot be relied on to
justify creating a rule of general application in ordinary civil litigation. These are
two narrowly defined categories of case where a departure from the usual rules of
procedure has been held to be justified. So far as I am aware, the procedures
adopted in these cases are not regarded as controversial and work satisfactorily.
By contrast, the closed material procedure is controversial and, in some quarters at
least, is regarded as unsatisfactory.
66. Reference was also made by Mr Crow to proceedings before the
Competition Appeal Tribunal (“CAT”) and, for example, the case of Carphone
Warehouse Group v Office of Communications [2009] CAT 37 where the tribunal
refused disclosure for the purpose of the substantive hearing. But the CAT
emphasised the distinction between the inquisitorial procedure that is adopted in
statutory appeals before it and the adversarial procedure adopted in civil trials.
Conclusion
67. As Lord Clarke has emphasised, the common law is flexible. It develops
over time in response to changing circumstances. Sometimes, it takes giant steps
Page 21
forward. More often, it evolves gradually and cautiously. But any change must be
justified, otherwise the law becomes unstable. This is particularly important where
a change involves an inroad into a fundamental common law right. The
introduction of a closed material procedure in ordinary civil claims (including
claims for judicial review) would do just that. Mr Crow suggests that the court
should have the power to replace the PII process with a closed material procedure
in exceptional circumstances where this is in the interests of justice. Lord Clarke
suggests that the court should be able to supplement the PII process with such a
procedure in exceptional circumstances. For the reasons that I have given, there is
no compelling reason for change. The PII process is not perfect, but it works well
enough. In some cases, it is cumbersome and costly to operate, but a closed
material procedure would be no less so.
68. It is true that, by a majority, this court has decided in Tariq v Home Office
[2011] UKSC 35 that the use of a statutory closed material procedure before the
Employment Tribunal is lawful under article 6 of the European Convention on
Human Rights (“the Convention”) and EU law. But the lawfulness of a closed
material procedure under article 6 and under the common law are distinct
questions. As Lord Bingham said in R (Ullah) v Special Adjudicator [2004] UKHL
26, [2004] 2 AC 323 at para 20 “[i]t is of course open to member states to provide
for rights more generous than those guaranteed by the Convention”. It is, therefore,
open to our courts to provide greater protection through the common law than that
which is guaranteed by the Convention.
69. As the Court of Appeal said at para 69 of their judgment, “never say never”
is often an appropriate catchphrase to use in the context of the common law.
Nobody can predict how the law will develop in the future. We are concerned with
the position as it is now. But for the reasons that I have given, I agree with the
Court of Appeal that the issues of principle raised by the closed material procedure
are so fundamental that a closed material procedure should only be introduced in
ordinary civil litigation (including judicial review) if Parliament sees fit to do so.
No doubt, if Parliament did decide on such a course, it would do so in a carefully
defined way and would require detailed procedural rules to be made (such as CPR
Parts 76 and 79) to regulate the procedure.
LORD HOPE
70. The issues in this case have been set out so clearly and so comprehensively
by Lord Clarke and Lord Dyson that I can go directly to the heart of the question
that is before us.
Page 22
71. The word “never” is such a blunt and uncompromising expression that one
has a natural reluctance to lean against it, especially in a case such as this where, as
Lord Clarke points out in para 125, we are being asked to decide the issue without
reference to the facts of any particular case. But the issue is essentially one of
principle. I can see the attractions of the approach that Lord Phillips takes, which is
to deal only with the preliminary issue which was before the Court of Appeal and
not to engage in a consideration of the wider question as to whether it would ever
be right for the closed material procedure to be introduced for ordinary civil
litigation without the authority of Parliament: see paras 192 and 197. I would like
him give a negative answer, for the reasons that Lord Clarke has explained, to the
question whether the established PII procedure should be replaced by some sort of
closed procedure at common law. I agree that such a fundamental change to that
long-established procedure cannot properly be seen as a development of the
common law and that it could only be brought about by Parliament. But the
argument both in the Court of Appeal and before this court was addressed to the
wider issue too. I do not think that it would be right for us to leave the wider issue
in a state of uncertainty.
72. I have always believed that a court of unlimited jurisdiction is the master of
its own procedure. But that does not mean that the court can do what it likes.
Everything that it does must have regard to the fundamental principles of open
justice and of fairness. The principle of legality demands nothing less than that.
There is, of course, a very wide area of procedure where these issues of principle
are not engaged at all. There comes a point, however, where the line must be
drawn between procedural choices which are regulatory only and procedural
choices that affect the very substance of the notion of a fair trial. Choices as to
how the conduct of the court’s business may be simplified, made less expensive or
made easier to understand are one thing. Choices that cut across absolutely
fundamental principles such as the right to a fair trial, the right to be confronted by
one’s accusers and the right to know the reasons for the outcome are entirely
different. The court has for centuries held the line as the guardian of these
fundamental principles.
73. I can see the force of the argument that there are circumstances where
justice cannot be done unless a closed procedure is adopted. It is advanced, as
Lord Brown puts it in para 81, as the least bad solution to a difficult problem. But
I think that the court must resist the temptation to go down that road. It would, at
best, be an uncertain journey, beset by problems of the kind that Lord Dyson refers
to in para 43. It would also run the risk of opening the door to something else. As
the Court of Appeal said, it is a melancholy truth that a procedure or approach
which is sanctioned by the court expressly on the basis that it is applicable only in
exceptional circumstances none the less often becomes common practice: [2010] 3
WLR 1069, para 69. Lord Shaw of Dunfermline’s warning in Scott v Scott [1913]
AC 417, 477-478, against the usurpation of fundamental rights that proceeds little
Page 23
by little under the cover of rules of procedure remains just as true today as it was
then. This is not the time to weaken the law’s defences. On the contrary, any
weakening in the face of advances in the methods and use of secret intelligence in
a case such as this would be bound to lead to attempts to widen the scope for an
exception to be made to the principle of open justice. That would create a state of
uncertainty in an area of our law which would be inimical to the concept of a
fundamental right.
74. The proposition that a closed material procedure should only be introduced
in ordinary civil litigation if Parliament sees fit to do so should not be seen as
surrendering to Parliament something which lies within the area of the court’s
responsibility. Instead it is a recognition that the basic question raises such
fundamental issues as to where the balance lies between the principles of open
justice and of fairness and the demands of national security that it is best left for
determination through the democratic process conducted by Parliament, following
a process of consultation and the gathering of evidence. The detailed working out
of any change to the procedure that Parliament may sanction would no doubt be
left to the court in the exercise of its rule-making powers. The court will, of course,
be conscious of its responsibility to see that, so far as it is possible to do so,
anything that Parliament enacts is read and given effect in a way that is compatible
with the Convention rights.
75. The question whether it would be open to the court to adopt a closed
material procedure if the parties agreed to this raises difficult issues on which we
did not hear any argument, not the least of which is the pressure that might be
brought to bear on a claimant to agree. Like Lord Kerr, I very much doubt whether
this would ever be appropriate. But, as we do not need to decide it in this case, the
proper course is to leave the question open for the time being.
76. I would dismiss the appeal for the reasons given by Lord Dyson.
LORD BROWN
77. I have had the advantage (a very real advantage in this particular case) of
reading in draft the judgments of Lord Clarke and Lord Dyson. Lord Clarke
envisages circumstances in which the courts could properly order a closed material
procedure (with a special advocate) in ordinary civil litigation and so would allow
the appeal. Lord Dyson agrees with the Court of Appeal that this would be
impermissible without express parliamentary authorisation. I find it difficult to
suppose that either viewpoint could be more persuasively expressed. Yet neither
conclusion do I find entirely satisfactory. Let me try to explain.
Page 24
78. If and in so far as the real issue before us is whether Parliament alone could
provide for so fundamental an inroad into the principle of open justice as is
proposed here – whether, in other words, such a step is beyond the permissible
development of the common law – I am in Lord Dyson’s camp. There seems to me
at least as good a reason for saying that Parliament alone could sanction this
development as for saying, as the House of Lords did in R v Davis [2008] UKHL
36; [2008] AC 1128, that Parliament alone could sanction the use of anonymous
evidence in a criminal trial – an invasion of the common law principle that the
defendant has the right to be confronted by (or, as I preferred to put it, the right to
know the identity of) his accusers. But there is to my mind a real difference
between this case and Davis. This is not, as Lord Clarke suggests (at para 187),
because Davis was a criminal case. Rather it is because, whereas the majority in
Davis envisaged early legislation to meet the problem – legislation did indeed
follow within days although whether it meets the problem remains to be decided
by the long-awaited judgment of the Grand Chamber in Strasbourg in Al-Khawaja
v United Kingdom – it seems to me highly doubtful whether Parliament will
legislate speedily here and even more doubtful whether the introduction of a closed
procedure, certainly along the lines both Lord Clarke and Lord Dyson appear to
envisage, would indeed meet the very real problems that arise in cases like this.
79. I speak of “cases like this” because it seems to me quite impossible to
discuss the issue raised here on an entirely abstract basis and really only useful to
do so in a specific context – the very context, I would suggest, in which the
question here was raised: a claim against the Intelligence Services and their
sponsoring departments of the nature summarised by Lord Clarke (at para 132 of
his judgment), essentially alleging complicity in the claimants’ extraordinary
rendition, false imprisonment, torture and other ill-treatment, involving (as Lord
Clarke notes at para 135) up to 250,000 potentially relevant documents of which
up to 140,000 may involve considerations of national security – so that a
conventional public interest immunity process, notwithstanding the employment of
60 lawyers specifically for the purpose, would be likely to take upwards of three
years.
80. Both Lord Clarke and Lord Dyson envisage that, before any question could
arise of introducing a closed procedure into the proceedings (save in so far as
necessary to improve the PII process itself, as recognised by the House of Lords in
R v H [2004] UKHL 3, [2004] 2 AC 134 – see Lord Clarke at para 150 and Lord
Dyson at paras 49 and 54) the conventional PII process would have to be
completed with first the Minister (see R v Chief Constable of West Midlands
Police, Ex p Wiley [1995] 1 AC 274) and then the court striking the relevant
balances. Lord Clarke makes this plain at paras 152 and 153, Lord Dyson at para
38. Both, in short, appear to envisage that the only real object of the closed
procedure proposed here would be to enable a party, wishing to rely on documents
held to be undisclosable, and thus inadmissible, in the public interest, to rely on
Page 25
them in closed proceedings. In all likelihood, of course, such a procedure would
be invoked by the Crown in just such a case as this where many of the relevant
documents would almost inevitably be undisclosable in the interests of national
security. (Although theoretically it would be open to claimants to seek this
procedure in order, first, through their special advocate, to examine the
undisclosed documents and then, if thought favourable to their case, to deploy
them in closed proceedings, frankly this appears a somewhat unrealistic prospect.)
81. The advantage of this approach, suggests Lord Clarke (at para 159), is that
it avoids both the unpalatable alternative outcomes: either the trial proceeding
without the undisclosable documents (generally, it must be supposed, to the
Crown’s considerable disadvantage) or the action being struck out on the basis that
without the disclosed documents a fair trial is not possible (as in Carnduff v Rock
[2001] EWCA Civ 680, [2001] 1 WLR 1786). In short, contend its proponents, it
is the least bad solution to a difficult problem.
82. For my part, however, I am unpersuaded of this. In the first place, it offers
no solution at all to the very real problems of having to conduct a conventional PII
process in a case like this. To my mind there need to be compelling reasons to
justify the enormous expense, effort and delay involved in such a process here.
Secondly, the problem is surely not confined to the disclosure, and thus
admissibility, of documents. What about oral evidence? Presumably in a case like
this the Crown would wish, indeed need, to call witnesses from the Security
Service and the Secret Intelligence Service. Documentation aside, how is it
suggested that such evidence could satisfactorily be adduced at a public hearing
(indeed, any hearing attended by the claimants themselves)? Thirdly, any closed
material procedure with special advocates raises problems all its own,
considerations of open justice apart. As the Court of Appeal observed at para 70(e)
of its judgment – an observation expressly concurred in by both Lord Clarke (para
168) and Lord Dyson (para 45) – the envisaged closed material procedure “is
likely to add to the uncertainty, cost, complication and delay in the initial and
interlocutory stages of proceedings, the trial, the judgment, and any appeal”.
Further, as Lord Dyson observes at para 43, it would be a recipe for satellite
litigation. And on top of all this, and by no means least in importance, is the whole
question of open justice.
83. One need not take so extreme a view as that expressed by the Joint
Committee on Human Rights last year (see Lord Dyson’s judgment at para 37) to
recognise the grave inroads into our fundamental principles of open justice and fair
trials that are made by closed procedures. Without “A-type disclosure” (see my
judgment in Tariq v Home Office [2011] UKSC 35, at para 86), the claimants may
not learn sufficient of the case against them to enable them to give effective
instructions to the special advocate to meet it. With such disclosure, however,
national security may still be put at risk. Whatever the extent of disclosure,
Page 26
moreover, it will be difficult for the claimants’ lawyers to advise on the merits
(and difficult for the same reason to secure public funding), difficult similarly to
advise on settlement offers, and difficult too to advise on any appeal. But beyond
all these considerations would be the damage done by a closed procedure to the
integrity of the judicial process and the reputation of English justice. As Lord
Atkin, invoking Milton’s Areopagitica, famously said in Ambard v Attorney
General for Trinidad and Tobago [1936] AC 322, 335: “Justice is not a cloistered
virtue: she must be allowed to suffer the scrutiny and respectful, even though
outspoken, comments of ordinary men.” A closed procedure in the present context
would mean that claims concerning allegations of complicity, torture and the like
by UK Intelligence Services abroad would be heard in proceedings from which the
claimants were excluded, with secret defences they could not see, secret evidence
they could not challenge, and secret judgments withheld from them and from the
public for all time. As the Court of Appeal observed below (at para 56):
“If the court was to conclude after a hearing, much of which had
been in closed session attended by the defendants but not the
claimants or the public, that for reasons, some of which were to be
found in a closed judgment that was available to the defendants but
not the claimants or the public, that the claim should be dismissed,
there is a substantial risk that the defendants would not be vindicated
and that justice would not be seen to have been done. The outcome
would be likely to be a pyrrhic victory for the defendants whose
reputation would be damaged by such a process, but the damage to
the reputation of the court would in all probability be even greater.”
84. Lord Clarke (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).
For 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. In Scott v Scott [1913] AC 417 itself, after all, there
had been no objection at first instance to the proceedings being conducted in
camera. That did not prevent the process thereafter being roundly and
resoundingly condemned by the House of Lords.
85. What, then, of the several exceptions to the open justice principle that have
been recognised by the courts? In so far as these exceptions have a statutory basis,
of course, no problem arises. Tariq v Home Office [2011] UKSC 35 is, obviously,
a case in point. So, too, the control order cases. And R (Roberts) v Parole Board
[2005] UKHL 45, [2005] 2 AC 738 seems to me similarly explicable on essentially
the same basis: given that the Parole Board was expressly empowered to withhold
Page 27
evidence from the prisoner and exclude him from hearings devoted to its
consideration, the House of Lords understandably (although still only by the
narrowest of majorities) sanctioned the use of special advocates specifically so as
to provide additional protection for the prisoner. No problem arises either in
certain well-established classes of case of which the most obvious (perhaps the
only) examples are wardship/children proceedings (see Lord Dyson’s judgment at
para 63) and, yet more narrowly circumscribed, certain intellectual property
proceedings to protect commercial interests (see Lord Dyson’s judgment at para
64). In so far, however, as the appellants seek to rely on other recent decisions or
dicta of the Divisional Court or the Court of Appeal – most notably in R (Malik) v
Manchester Crown Court [2008] EWHC 1362 (Admin), [2008] 4 All ER 403, A v
HM Treasury [2008] EWCA Civ 1187, [2009] 3 WLR 25 and R (AHK) v
Secretary of State for the Home Department (Practice Note) [2009] EWCA Civ
287, [2009] 1 WLR 2049 (albeit in none of these cases does it appear that the
propriety of a closed procedure was ever actually argued) – I would simply repeat
what I said in Davis (at para 66): “If . . . the government now think it right to
legislate in this field, so be it. Meantime, however, the creeping emasculation of
the common law principle must be not only halted but reversed.”
86. I come then, finally, to the way ahead. If, as I believe, it would be quite
wrong for the common law to be developed to provide for a closed procedure in
cases like this, and if, as I have suggested, not even the introduction of such a
procedure by Parliament would really solve the problems arising, what should
instead be done? For my part I have reached the reluctant conclusion that, by their
very nature, claims of the sort advanced here, targeted as they are principally
against the Intelligence Services, are quite simply untriable by any remotely
conventional open court process. The problems they raise, of oral no less than
documentary evidence, are just too deep-seated to be capable of solution within
such a process. Far too little would be gained, and far too much lost, by the
appellants’ proposed development of the common law. In short, some altogether
more radical solution is, I believe, required. Realistically there seem to be only
two possible solutions. Either cases of this kind, necessarily involving highly
sensitive security issues, should go for determination by some body akin to the
Investigatory Powers Tribunal which does not pretend to be deciding such claims
on a remotely conventional basis (see my judgment in Tariq v Home Office). Or
they must simply be regarded as untriable and struck out on the basis that, as Laws
LJ put it in Carnduff at para 36: “[They] cannot, in truth, be justly tried at all.”
87. Obviously, I need hardly add, claims of the sort made here – of the
complicity of the Intelligence Services in torture – ought not simply to be swept
under the carpet. That, of course, explains why, these particular claims having
been settled without admission of liability, they are to be the subject of an inquiry
under the chairmanship of Sir Peter Gibson. It is to be hoped that, in the light of
that inquiry’s findings, together with the responses to the Government’s proposed
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Green Paper, an acceptable way ahead may be found for the resolution of this type
of case. Meanwhile, whatever else is to be done, it is certainly not the development
of the common law in the way proposed. This is one of those cases where the court
should indeed say “never”. The appeal should be dismissed.
LORD KERR
88. For the reasons given by Lord Dyson, with which I fully agree, I too would
dismiss this appeal.
89. As I have observed in the associated case of Tariq v Home Office [2011]
UKSC 35, the right to know and effectively challenge the opposing case has long
been recognised by the common law as a fundamental feature of the judicial
process. I referred in my judgment in that case to various celebrated expressions of
that principle and I need not repeat them here. The right to be informed of the case
made against you is not merely a feature of the adversarial system of trial, it is an
elementary and essential prerequisite of fairness. Without it, as Upjohn LJ put it in
In re K (Infants) [1963] Ch 381, a trial between opposing parties cannot lay claim
to the marque of judicial proceedings.
90. And so the key nature of this right and its utter indispensability to the
fairness of proceedings must occupy centre stage in the debate as to whether it may
be compromised to serve the interests which the appellants claim require to be
served and which are said to justify a departure from it.
91. The appellants have advanced two principal arguments in support of the
claim that a closed procedure is required in this case. The first of these is
pragmatic; the second purportedly a matter of principle. It is first asserted that the
exercise involved in conducting a conventional public interest immunity exercise
would be so daunting that some means should be found to avoid it. The second
argument is that the adoption of a closed procedure will actually conduce to a
fairer trial than would otherwise be possible.
92. The first of these arguments can easily be – and, in the judgments of Lord
Clarke and Lord Dyson, has been – disposed of and I need say little more about it.
As has been observed, unless there is to be complete abandonment of public
interest immunity procedure as a means of catering for the tension between
disclosure of relevant material and protection of the public interest, the exercise
cannot be avoided. For the reasons given by Lord Clarke, to desert that procedure,
so deeply embedded in our system of law, for reasons of expediency simply cannot
be contemplated. The seemingly innocuous scheme proposed by the appellants
Page 29
would bring to an end any balancing of, on the one hand, the litigant’s right to be
apprised of evidence relevant to his case against, on the other, the claimed public
interest. This would not be a development of the common law, as the appellants
would have it. It would be, at a stroke, the deliberate forfeiture of a fundamental
right which, as the Court of Appeal has said in para 70 of its judgment [2010] 3
WLR 1069, has been established for more than three centuries.
93. The appellants’ second argument proceeds on the premise that placing
before a judge all relevant material is, in every instance, preferable to having to
withhold potentially pivotal evidence. This proposition is deceptively attractive –
for what, the appellants imply, could be fairer than an independent arbiter having
access to all the evidence germane to the dispute between the parties? The central
fallacy of the argument, however, lies in the unspoken assumption that, because
the judge sees everything, he is bound to be in a better position to reach a fair
result. That assumption is misplaced. To be truly valuable, evidence must be
capable of withstanding challenge. I go further. Evidence which has been insulated
from challenge may positively mislead. It is precisely because of this that the right
to know the case that one’s opponent makes and to have the opportunity to
challenge it occupies such a central place in the concept of a fair trial. However
astute and assiduous the judge, the proposed procedure hands over to one party
considerable control over the production of relevant material and the manner in
which it is to be presented. The peril that such a procedure presents to the fair trial
of contentious litigation is both obvious and undeniable.
94. In the solution offered by the appellants a state party can supply evidence to
the judge with only (at best) the inquiring confrontation of the special advocate.
Quite apart from the reasons so clearly stated by Lord Dyson about the necessary,
inevitable but ultimately inherent frailties of the special advocate system, the
challenge that the special advocate can present is, in the final analysis, of a
theoretical, abstract nature only. It is, self evidently and admittedly, a distinctly
second best attempt to secure a just outcome to proceedings. It should always be a
measure of last resort; one to which recourse is had only when no possible
alternative is available. It should never be regarded as an acceptable substitute for
the compromise of a fundamental right such as is at stake in this case.
95. At a somewhat more prosaic level, the arguments against the case made by
the appellants appear to me to be overwhelming. If one starts, as I believe we must,
with the position that there is a constitutional, common law right to be informed of
the case made against you in civil litigation, it becomes clear that what we are here
being asked to do is to create an entirely new, hitherto unrecognised exception
which has no statutory underpinning. The proposal for the radical change in the
law which the appellants seek is openly policy driven. On that account alone, one
should be very wary of it. Moreover, the claims that the present system creates
impossible logistical burdens or that it produces unfair results on a massive scale
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are not backed up by any evidence. To accept that claim we would simply be
acting on the ipse dixit of counsel.
96. At the moment with PII, the state faces what might be described as a
healthy dilemma. It will want to produce as much material as it can in order to
defend the claim and therefore will not be too quick to have resort to PII. Under
the closed material procedure, all the material goes before the judge and a claim
that all of it involves national security or some other vital public interest will be
very tempting to make.
97. In this connection, one should not lose sight of the public interest in
maintaining confidence in the administration of justice referred to so pertinently by
Lord Neuberger MR in para 56 of his judgment in the Court of Appeal in the
present case. For the reasons that he has given, I consider that this is an extremely
important consideration and one which ought not to be overlooked.
98. On the question whether closed material might be provided to a judge
where the claimant consents, I confess to grave misgivings as to how this might
operate in practice. Consent to the submission of closed material under threat of a
Carnduff application would not be the most propitious basis on which to found a
jurisdiction which would not otherwise exist.
99. I also entertain considerable doubt as to whether it is possible as a matter of
principle to invest the court with jurisdiction in this way and tend to agree with
what Lord Brown has had to say on the subject. Since, however, this matter was
not argued on the appeal, I consider that it is unnecessary to express any final view
on it.
LORD MANCE, with whom Lady Hale agrees
100. A conventional PII exercise at common law involves comparing the public
interest in the administration of justice secured by availability of the material with
the public interest identified by the certificate and court favouring its suppression;
and in striking a balance between these two competing interests: see Lord Reid’s
speech in Conway v Rimmer [1968] AC 910, pp 940 and 951-952, quoted by Lord
Clarke in paras 142-143.
101. The balance is struck somewhat differently in criminal and civil law
contexts (see eg Balfour v Foreign and Commonwealth Office [1994] 1 WLR 681,
at pp 688H-689A). In a criminal context, the general rule is that, if material is
Page 31
necessary to prove the defendant’s innocence or avoid a miscarriage of justice,
then “the balance comes down resoundingly in favour of disclosing it”: R v Keane
[1994] 1 WLR 746, 751-752, per Lord Taylor of Gosforth CJ. If the Crown still
does not wish to disclose the material, it can and must forgo further prosecution.
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 [1983] 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.”
103. Thus, in both a criminal and a civil context, a judge dealing with an issue of
PII has necessarily to form a view as to the relevance of the material for which PII
is claimed. This is a fortiori the position if a judge, having concluded that, in the
public interest, material cannot be disclosed, goes on to consider whether, as a
result, the case has become untriable: see Carnduff v Rock [2001] EWCA Civ 680,
[2001]1 WLR 1786, below.
104. Mr Jonathan Crow QC representing the Crown identifies various problems
about a conventional PII exercise. Lord Dyson has set them out in para 23. They
include the obvious difficulty in some cases of comparing two such different
interests as the administration of justice between parties and the general public
interest in withholding from outside eyes sensitive state material, the fact that a
successful claim to PII can leave a party with relevant knowledge that neither the
other party nor the decision-maker will have and may even make a case untriable
and the dilemma (whether or not to pursue its case) in which an unsuccessful claim
to PII can leave the state. They also include essentially pragmatic concerns such as
the cost and time-burden imposed by a conventional PII exercise.
105. In their light, the Crown’s primary case is that a court can decide to replace
a conventional PII exercise by a closed material procedure, even without statutory
Page 32
authorisation such as arises for consideration in the linked appeal in Tariq v Home
Office [2011] UKSC 35. The court should be able, at least in exceptional cases, to
order a closed procedure under which a special advocate would first ascertain the
case being advanced by the litigant whose interests he or she was to serve; the
material which the Crown seeks to withhold would then be made available to the
judge and a special advocate, for the latter to make such forensic use of it as was
possible. A balancing of the competing interests in disclosure would become
unnecessary, since the judge and the special advocate would have access to
everything. Whether or not it might, after a conventional PII exercise, have been
excluded or made available would become irrelevant. As a secondary and
alternative case, the Crown suggests the possibility that a closed material
procedure might be ordered after or at the end of a conventional PII exercise.
106. Ms Dinah Rose QC’s submission on behalf of the respondent is that there
are inalienable features of a civil trial which no English court can or should
abandon or qualify, at least without Parliamentary authority, even though this
would involve no infringement of the Convention rights domesticated by the
Human Rights Act 1998 (cf Tariq v Home Office [2011] UKSC 35). Lord Dyson
has discussed them under the heads of open and natural justice in paras 10 to 13
and Lord Clarke has identified the principal features in para 126. Ms Rose also
noted a number of practical consequences which could flow from their
abandonment, including difficulty on the part of the party without access to the
material withheld to assess, take proper legal advice on the merits of or fund a
case.
107. Taking the Crown’s primary submission, I see no basis for the complete
substitution of a conventional PII exercise by a closed material procedure, even if
this were a possibility limited to “exceptional circumstances”. The line between
cases where a traditional PII exercise was undertaken and others would be
unprincipled and uncertain. It is inherent in a conventional PII exercise that there
may be difficulty in comparing the interests of the administration of justice and the
general public interest, that a successful claim to PII can leave one party with
relevant knowledge, or may even make a case untriable and may place the Crown
in a dilemma whether or not to pursue its case after an unsuccessful claim to PII. It
would be entirely unclear when these features might justify a judge in abandoning
any attempt at a conventional PII exercise. Further, the special advocate would
often be likely to become engaged in a modified form of PII exercise, involving
arguments as to whether material should after all be disclosed to the litigant,
bearing in mind the potential disadvantages for the litigant of a closed material
procedure; nothing would then be gained, except to shift the whole burden of
conducting that form of PII exercise onto the special advocate.
108. The Crown’s alternative submission, that a closed material procedure might
be recognised after or as supplementary to a conventional PII exercise, merits
Page 33
close scrutiny. As I understand it, no member of the Supreme Court doubts the
approach in Carnduff v Rock [2001] 1 WLR 1786 as a possibility: see Lord Dyson
at para 15, Lord Brown at para 86 and Lord Clarke at para 157. In other words, a
successful claim for PII can make an issue untriable, so that the court will simply
refuse to adjudicate upon the case. In some circumstances, therefore, the court is
faced not with a binary choice, between trial with or without the material for which
PII has been claimed, but with a trinary choice: the third possibility is no trial at all
– whoever happens to be the claimant then has no access to the court at all.
109. Logically, this third possibility may be capable of feeding back into the
decision whether a claim for PII should be allowed. If the effect of a successful
claim to PII is that the case will not be tried at all, that introduces a different
dimension, which may affect the striking of the balance of competing interests
(para 103 above).
110. Lord Brown assumes (para 81) that a trial without the judge having any
access to the PII material would be likely to be “to the Crown’s considerable
disadvantage”. But it is not right to assume that the executive never errs or that
material for which it claims PII is necessarily in its favour. In any event, issues
regarding PII can arise between non-state parties, as for example in Asiatic
Petroleum Co Ltd v Anglo-Persian Oil Co Ltd [1916] 1 KB 822. And it must
certainly be regarded as being to a claimant’s considerable disadvantage, if as a
result of the withholding of PII material, the court concludes, as in Carnduff, that
the case is not triable at all.
111. Like a number of other members of the court, I believe that the issue upon
which the Court of Appeal and now this Court has embarked is fraught with
danger and in principle undesirable; and that any answer that we give should at
least be confined to situations such as the present where the defendant is the state
and has the material withheld in its possession.
112. If the court never has jurisdiction (in the strict sense) to order a closed
material procedure, that means that, even where a court concluded that a claimant
must be denied access to material and the case must otherwise be struck out as
untriable, it would be impossible for the court to order, with the consent of the
claimant, a closed material procedure. There would be no way in which the
material could be put before a judge, with the claimant’s interests being
represented to the best extent possible by a special advocate. I would be surprised
if the court’s inherent jurisdiction (in the strict sense) were inhibited to this extent.
113. I note that the judgment of the Court of Appeal, whose decision the
respondent has invited the Supreme Court to uphold “as correct for the reasons
Page 34
given by it”, expressly leaves open the question of “whether a closed material
procedure can properly be adopted, … in an ordinary civil case such as the present,
where all parties agree, or in a civil claim involving a substantial public interest
dimension”, and adds that, although this is an issue to be considered as and when it
arises, “principle and the authorities relied upon [in the courts] below … suggest
that a different conclusion may well be justified in such cases, albeit only in
exceptional circumstances” (para 71). Ms Rose did not challenge this qualification
in her submissions. On the contrary, she went even further than the Court of
Appeal. Her case (para 133) states:
“There is similarly no need for this court to reach a decision on
whether a closed material procedure would be permissible if the
parties consented to it, or in different sorts of proceedings, where the
task of the judge was not simply to adjudicate on a private law claim
for damages. However, insofar as necessary, the respondent would
submit:
“(1) A party may consent to absent himself from all or part of
a hearing, and to allow the judge to see material which is not
shown to him: there may be cases where it is in his interest to
do so, and these are likely to include the public law contexts
in which such consent has been given in the recent past.
(2) The fundamental principles identified above, and the
requirements of the CPR, apply with equal force to claims for
judicial review, as to civil claims for damages. In the absence
of consent, a court hearing such claims has no power to adopt
a closed procedure”
Cases of consent are also outside the “basic rule” which Lord Dyson identifies in
para 22, that the court cannot exercise its power to “deny” parties their
fundamental common law right to participate in proceedings in accordance with
the common law principles of natural justice and open justice. An inability to
allow a voluntarily accepted closed material procedure, as an alternative to striking
a claim out as untriable, would be to deny something even more basic, that is any
access to justice at all. Lord Dyson in the first sentence of para 22 uses the phrase
“at any rate, not without the consent of the parties” and may therefore also accept
this.
114. Further, once it is accepted, as Lord Dyson does (para 63), that “there are
certain classes of case where a departure from the normal rule may be justified for
special reasons in the interests of justice”, for example wardship and other cases
Page 35
where the interests of children are paramount, that to my mind also makes it
difficult to suggest that the court lacks jurisdiction in a strict sense to vary the
basic principles of open and natural justice mentioned in para 107 above.
115. There is however a real distinction between having jurisdiction and
exercising it. Principles as important as open and natural justice ought to be
regarded as sacrosanct, as long as they themselves do not lead to a denial of
justice. Absent statutory authorisation, any significant deviation from the ordinary
process and consequences of a conventional PII exercise can and should only be
under the compulsion of necessity, in order to avoid such a denial. Mr Crow
acknowledged this as a possible approach. He cited Viscount Haldane LC’s wellknown statements in Scott v Scott [1913] AC 417, 437-438, that exceptions to the
principle that justice be administered in public may arise from considerations of
necessity (not convenience) as “the outcome of a yet more fundamental principle
that the chief object of Courts of justice must be to secure that justice is done”. In
this connection, Viscount Haldane referred to two cases: (a) “wards of court and of
lunatics”, where the court “is really sitting primarily to guard [their] interests” and
“the broad principle which ordinarily governs it therefore yields to the paramount
duty, which is the care of the ward or the lunatic” – the court’s role here, now
regulated statutorily under the Mental Health Act 1983 and Mental Capacity Act
2005, has a parallel in that which it has in relation in children – and (b) “litigation
as to a secret process, where the effect of publicity would be to destroy the subjectmatter” and “justice could not be done at all if it had to be done in public”, in
which case “As the paramount object must always be to do justice, the general rule
as to publicity, after all only the means to an end, must accordingly yield”. Thus,
while it is true, as Lord Brown observes (para 84), that in Scott v Scott the House
deprecated the hearing in camera of a matrimonial issue in the interests of decency
or delicacy, the House there expressly recognised the possibility that such a
hearing might be ordered if the alternative was “a defeat of the ends of justice” (p
439). Subsequent authorities discussing the principle of public justice and the
circumstances in which it may be qualified include Department of Economics,
Policy and Development of the City of Moscow v Bankers Trust Co [2004] EWCA
Civ 314; [2005] QB 207, where the Court of Appeal recognised that the principle
might require modification to respect the confidentiality inherent under English
law in their choice of arbitration. Party agreement can therefore have relevance to
the modification in the interests of justice of what would otherwise be basic
principles.
116. Viscount Haldane was speaking in Scott v Scott in the context of publicity,
where the inroad into ordinary process is of a different order to that involved in
any closed material procedure. But a claimant who is told that, because of the
defendant’s possession of material which cannot be disclosed, the claim is and
must be struck out as untriable is just as effectively told, in Viscount Haldane’s
words, that “justice cannot be done”. The inference may or may not be that the
Page 36
material favours the defendant state which has the documents and could rely on
them for what they were worth in any closed material procedure. The claimant
must by definition have a properly arguable case without the documents, since
otherwise his or her case would be susceptible to being struck out. I myself see no
reason why the court should not in such circumstances be able and prepared to
offer the claimant the chance, if he or she wished, to pursue the claim by a closed
material procedure, during which his or her interests would be represented by a
special advocate. Lord Brown suggests (paras 86-87) that such cases must go off to
some specially constituted tribunal, which does not pretend to be deciding such
claims “on a remotely conventional basis”. I find this difficult to square with the
fact that courts and judges can and do operate closed material procedures where
there is statutory authorisation, and can and do also depart from otherwise basic
common law principles in the special classes of case which Lord Dyson mentions
in para 63. Further, if one assumes that cases such as Carnduff are a “rarity” (Lord
Dyson, para 50), that does not make it any more palatable, to my mind or to the
individual claimant, to be denied any access to justice at all, in circumstances
when he or she wishes to accept a closed material procedure. I do not see why a
court should, instead of permitting a closed material procedure, insist on washing
its hands of the case in such circumstances.
117. In a public law context, statutory schemes, e.g. governing suspected
terrorism, have given rise to repeated issues about the legitimacy in terms of the
Convention rights of closed material procedures: see eg Secretary of State for the
Home Department v AF (No 3) [2009] UKHL 28; [2010] 2 AC 269 and Tariq v
Home Office [2011] UKSC 35. It is also possible, at least in theory, to conceive of
ordinary civil cases where the material withheld is in the hands of the claimant. A
claim to PII is a duty, not an option, on the part of the state. A claimant (who
might in some circumstances not be the state itself: see the Asiatic Petroleum case,
cited in para 110 above) might find itself, at one and the same time, wishing to
pursue a claim, but bound to raise (or, in the case of a non-state claimant, faced
with) a claim for PII in respect of material in its possession. Again, it must be
assumed that the claimant could, without the material, show an arguable case. If
the court concluded that the material favoured the claimant, then the interests of
justice would be unlikely to require its disclosure. The problem arises if the court
concluded that it favoured the defendant but that the public interest in its
confidentiality outweighed any particular interest of the defendant and that as a
result the case could not fairly be tried.
118. Would it then be open to the court, as an alternative, to avoid denying any
access to the court to the claimant, to order that the defendant should accept a
closed material procedure? In the case of a state claimant, the public interest which
required the claim to PII might perhaps also be said to require the state to accept
that it could not pursue certain claims which it would otherwise wish to pursue in
the public interest. In the case of a non-state claimant, seeking to pursue an
Page 37
ordinary civil claim in his, her or its private interest, that consideration could not
be deployed. Nevertheless, it is far from clear that the court could go to the length
of ordering a defendant to undergo a closed material procedure, in order to enable
a non-state actor to pursue an otherwise untriable civil claim. But I shall express
no opinion upon any such case since it lies far outside the realm of the present, and
should be considered on its own merits were it ever to arise.
119. I should however address two further possibilities raised by Lord Clarke’s
judgment in relation to cases like the present where the relevant material is in the
defendant’s possession. One is the possibility, which I understand to be left open
in paras 160-165, that, a judge might be able to order a closed material procedure
at the claimant’s instance, even though the judge concluded that the case was
triable without the disclosure of the material withheld. The other is the suggestion
in para 179 that the judge, if he or she declined to strike the claim out, might none
the less accede to an application by the defendant for a closed material procedure
“based on necessity, namely that such a procedure would be necessary in order to
permit a fair trial”. Both, it seems to me, involve an inconsistency. If a judge
declines both to order disclosure and to strike the claim out, that means that he or
she is satisfied that a fair trial, albeit on incomplete or imperfect material, is
possible. There cannot in such a case be any “necessity”, in the strict sense
emphasised in Scott v Scott, for any departure from basic principles of open and
natural justice. Both suggestions would in reality involve modifying the
conventional PII exercise to introduce a fourth possibility, additional to the
existing three (trial with or without disclosure, or no trial at all). As I have already
indicated, I see no principled basis for such a modification.
120. For these reasons, and confining myself to cases such as the present where
the material withheld is in the defendant’s and not the claimant’s possession, I
consider that the Court can safely decide that there is no general basis for
modifying the well-established rules governing the nature of a conventional PII
exercise. There is no scope for introducing a closed material procedure as an
alternative to such an exercise. I would not rule out a closed material procedure as
outside the court’s jurisdiction in a strict sense. But, statutory permission aside, the
only exception that I would presently accept is where, after a conventional PII
exercise, the judge concludes that there should be no disclosure, and that the case
is as a result untriable. Then I think that the court could adopt some form of closed
material procedure, if the claimant consented, in order to avoid denying the
claimant any form of access to the court.
121. As regards consent, there is, as I see it, nothing between my conclusion and
that of the Court of Appeal. If the preliminary issue is treated as raising a question
of jurisdiction in the strict sense, where there is no consent, then my view differs
on the issue of jurisdiction in the strict sense from that of the Court of Appeal’s.
As to the exercise of any such jurisdiction, I am in full agreement with the Court of
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Appeal that it cannot be appropriate to contemplate a closed material procedure in
lieu of a conventional PII exercise. I can only envisage the jurisdiction ever being
exercised after a conventional PII exercise in circumstances where a claimant
would otherwise be denied any access to justice at all. As to what those
circumstances might be, I would express an opinion only in relation to cases like
the present, where closed material is in the defendant’s possession. If the claimant,
in order to avoid his or her claim being struck out, consents to engage in a closed
material procedure, it would and should be permissible in my opinion for a court to
allow a closed material procedure. The contrary, as I have pointed out (para 113),
was not argued by the respondent.
LORD CLARKE
Introduction
122. The appellants in this appeal are the Security Service and various other
organs of the state. It is an appeal from a declaration made by the Court of Appeal
(Lord Neuberger of Abbotsbury MR, Maurice Kay and Sullivan LJJ) [2010]
EWCA Civ 482, [2010] 3 WLR 1069 on 4 May 2010 allowing an appeal from an
order made by Silber J (“the judge”) on 18 November 2009 [2009] EWHC 2959
(QB). That order was made after the hearing of a preliminary issue, which had
been ordered on 24 September 2009 but was varied by agreement in the course of
the hearing.
123. The preliminary issue as so varied was in these terms:
“Could it be lawful and proper for a court to order that a ‘closed
material procedure’ (as defined below) be adopted in a civil claim
for damages?
Definition of ‘closed material procedure’
A ‘closed material procedure’ means a procedure in which
(a) a party is permitted to
(i) comply with his obligations for disclosure of
documents, and
(iii) rely on pleadings and/or written evidence and/or oral
evidence
without disclosing such material to other parties if and to the extent
that disclosure to them would be contrary to the public interest (such
withheld material being known as ‘closed material’), and
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(b) disclosure of such closed material is made to special
advocates and, where appropriate, the court; and
(c) the court must ensure that such closed material is not
disclosed to any other parties or to any other person, save where it is
satisfied that such disclosure would not be contrary to the public
interest.
For the purposes of this definition, disclosure is contrary to the
public interest if it is made contrary to the interests of national
security, the international relations of the United Kingdom, the
detection and prevention of crime, or in any other circumstances
where disclosure is likely to harm the public interest.”
It is interesting to note that, as the judge said at para 2 of his judgment, in its
original form the preliminary issue contained the words “if satisfied that such a
procedure is necessary for the just disposal of the case” after the word “damages”
in the third line, but those words were deleted by agreement “as their meaning was
not clear and they did not appear to add anything to the preceding words”.
124. The judge granted the application for the declaration. He declared that it
could be lawful and proper for a court to order that a “closed material procedure”
(as defined above) be adopted in a civil claim for damages. He granted permission
to appeal to the Court of Appeal, which allowed the appeal. It made a declaration
that the court does not have power to order that a “closed material procedure” (as
so defined) be adopted in an ordinary civil claim for damages. The appellants
were granted permission to appeal by this Court. The underlying claims for
damages were then settled and the question arose whether the Court should allow
the appeal to continue. In very many cases the court would refuse to proceed in
such a case but it decided to proceed with this appeal because the point of principle
raised by the question whether the court has no power to make a declaration in the
terms sought is of general public importance. Moreover, given the fact that the
Court of Appeal made the declaration in the bald terms which it did, it seemed
appropriate for the court to consider it and not leave the matter to a future leapfrog
appeal.
125. One of the problems raised by the appeal is that the declaration is stated in
absolute terms, without reference to the facts of a particular case. I am firmly of
the view that it is in general undesirable to determine bare questions of law in this
way. I would expect the court ordinarily to require the relevant legal question to
be decided in a particular factual context.
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The parties’ cases in summary
126. The respondent’s case is that the judges have no power, by developing the
common law on an ad hoc case by case basis, to abrogate a number of the most
fundamental features of the trial of a civil claim for damages. Ms Dinah Rose QC
identifies a number of such features as follows:
i) the requirement that each party must plead its case, identifying to all
other parties the issues which are in dispute;
ii) the requirement that all written or oral evidence on which a party
wishes to rely in support of its case must be disclosed to the other parties to
proceedings;
iii) the requirement that each party must be permitted to test the disputed
oral evidence of other parties by cross examination;
iv) the rules which apply to the disclosure of relevant documents in the
possession of a party to proceedings, including the principles that govern
claims of public interest immunity (“PII”); and
v) the requirement that a court must give a fully reasoned judgment, to
be made available to all parties, so that each party knows why it has won or
lost and can decide whether or not to appeal.
127. Ms Rose submits that these are requirements which have been developed
and maintained over centuries in order to secure basic constitutional rights of
fairness, open justice and equality of arms, as well as to maintain confidence in the
integrity of the judicial system, and in order to balance those rights and interests
against competing considerations, including the interests of national security. Ms
Rose cites many cases which support these fundamental principles, which, subject
to what follows, are not disputed by Mr Jonathan Crow QC. Those principles have
been endorsed in ringing tones by Lord Kerr in his judgment in Tariq v Home
Office [2011] UKSC 35, which was heard at the same time as this appeal by the
same court and in which judgment has been handed down at the same time. They
have also been clearly and accurately set out by Lord Dyson at paras 10 to 17
above.
128. The appellants’ case was summarised by Mr Crow in a short document as
follows. The court’s objective is to achieve real justice between the parties.
Everyone is entitled to a fair trial. That right is absolute, but the means of
achieving it are infinitely variable. The practice and procedure of the court are the
means of achieving that objective. They should be the servants, not the masters, of
justice. As a general rule, real justice and a fair trial can only be achieved by a
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process which allows open hearings, open disclosure, each side confronting the
other’s witnesses and open judgments. There are, however, no absolute, inflexible
rules as to how real justice or a fair trial can be achieved. The requirements of
fairness must always be responsive to the particular circumstances of the case. In
particular, the courts have adopted procedures for hearings in private, restricted
disclosure, the exclusion of one party from part of the proceedings and closed
judgments, with and without the assistance of special advocates. The adoption of
such unusual procedures is not confined to any limited class or category of case,
whether involving children, wards of court, confidential information, patent
actions, insolvency or anything else. While the adoption of such procedures may
be more likely in such categories of case, the common law proceeds by reference
to principle and not by a ‘tick-box’ system. If a particular procedure is necessary
by reference to the circumstances of the particular case, it should be adopted
whether or not it falls into a category in which such a procedure has been adopted
in the past.
129. In the agreed statement of facts and issues, the issue is said to be whether,
in the absence of a specific statutory power, a closed material procedure can ever
be adopted in a civil claim for damages.
Defects in the order sought for the use of a “closed material procedure”
130. I will return below to the question whether the court would have power to
make an order of the kind sought. However, I should state at the outset that I
cannot conceive of circumstances in which the court could in fact properly make
an order for use of a “closed material procedure” as defined. It contains no
procedure setting out how the claim that disclosure of a particular document or
class of document is contrary to the public interest should be made or determined.
Is it a matter for the judge and, if so, on what material, with whose assistance and
in accordance with what principles? These are critical questions, especially the
last. As formulated it seems implicit in the procedure that there is to be no question
of any balance between the public interests referred to and interests of the parties.
Yet the various public interests sought to be protected are very different. They
extend from national security to “any other circumstances where disclosure is
likely to harm the public interest”, which is very broad indeed. As I see it, very
different considerations are likely to apply to each class of case. In these
circumstances, it seems to me to be clear that it would never be appropriate to
make an order in the bald terms apparently sought. It does not, however, follow
that it would never be appropriate to make an order suitably tailored to the
circumstances of the particular case which has the effect of limiting some of the
common law rights identified by Ms Rose. The appellants’ case was that there
were circumstances in which it would or might have been appropriate to do so on
the facts of this case.
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The factual and procedural background
131. Although the issues between the parties have now been settled, it is
appropriate to summarise the facts very briefly because it is rarely sensible to
consider any legal principle in the abstract and because the facts here demonstrate
some of the problems that can arise. I can take them, albeit in less detail, from
paras 5 to 10 of the judgment of the Court of Appeal, which was delivered by Lord
Neuberger MR.
132. The claimants were individuals some of whom were detained at
Guantanamo Bay. They said that as a result of their detention and mistreatment
while detained they had valid claims under at least some of the following heads,
namely false imprisonment, trespass to the person, conspiracy to injure, torture,
breach of contract, negligence, misfeasance in public office and breach of the
Human Rights Act 1998. The claims were based on the contention that, to put it in
broad terms, each of the appellants caused or contributed towards the alleged
detention, rendition and ill-treatment of each of the claimants. The appellants then
filed an open defence in which, while admitting that each of the claimants was
detained and transferred, they put in issue any mistreatment which the claimants
alleged and, in any event, denied any liability in respect of any of the claimants’
detention or alleged mistreatment. It was said that there was material not pleaded
in the open defence which the appellants wished to contend that the court should
consider but which could not be included without causing real harm to the public
interest. That material was said to be contained in a closed defence. The open
defence made it clear that the appellants wished the case to proceed throughout on
the basis that it included what may be characterised as a closed element.
133. Thus, at least on the face of it, during the period prior to trial, there would
be parallel open and closed pleadings, parallel open and closed disclosure and
inspection, parallel open and closed witness statements and parallel open and
closed directions hearings. Similarly, at the trial, the hearing would be in part open
and in part closed, no doubt with some documents and witnesses being seen and
heard in the open hearing and others in the closed hearing (with some witnesses
conceivably giving evidence at both hearings). After trial, there would be a closed
judgment and an open judgment, which would be in substantially the same terms
save that those passages in the closed judgment which referred to or relied on
closed material would be excluded from the open judgment. In relation to the open
elements of the proceedings, the claimants would be represented by their solicitors
and counsel in the normal way, whereas, in relation to the closed elements, their
interests would in effect be protected by special advocates.
134. The claimants objected to the course proposed by the appellants, contending
for the normal approach in cases where the Crown or government emanations are
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parties and consider that they have relevant documents in respect of which PII
might be claimed, and where the defendants could call relevant oral evidence
which might not be able to be given on public interest grounds. The appellants
accepted that the PII procedure was well established, but contended that a closed
material procedure was permissible in any civil case, at least before a judge sitting
without a jury, and that it might well be appropriate in this case, where there was a
very substantial amount of potentially relevant material which would be subject to
PII.
135. The evidence filed on behalf of the appellants suggested that there might be
as many as 250,000 potentially relevant documents, and that PII might have to be
considered in respect of as many as 140,000 of them. It was also said by the
appellants that the PII exercise might take three years before the relevant ministers
could conscientiously decide in respect of which documents PII could properly be
claimed. The appellants argued that the effort, cost and delay involved in such an
exercise might well justify a different approach, such as that presaged by the open
defence. It was said in a witness statement served on the appellants’ behalf in
support of the application to use a closed material procedure in this case that the
principal motivation for it was the enormous scale of the disclosure exercise and
the impracticability of carrying it out.
136. The appellants had initially sought directions from the High Court for the
determination of preliminary issues as to whether a court has the power to order
that a “closed material procedure” be adopted in a civil claim for damages if
satisfied that such a procedure is necessary for the just disposal of the case; and, if
so, whether and what arrangements for a closed material procedure should be
adopted in relation to the claims brought by the respondent (and others). The High
Court accepted the respondent’s (and his then fellow claimants’) submission that
the first issue should be considered alone because the question whether the power
to hold a closed material procedure should be exercised in this particular case
could itself only be answered by looking at closed material. The preliminary issue
described above was subsequently ordered and, as varied, determined by the judge.
The common law
137. It is important to note that the issue between the parties is concerned only
with the position at common law. There are now a number of circumstances in
which powers have been conferred on the courts to make similar orders by statute.
138. Tariq v Home Office is an example of such a case. It concerns the
permissibility and in particular compatibility with European Union law and with
rights under the European Convention on Human Rights (“the Convention”) of a
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similar closed material procedure authorised by certain statutory provisions. The
issues there focus on the lawfulness and effect of those provisions and their
compatibility, for example, with article 6 of the Convention, whereas in the instant
appeal the court is concerned with the position at common law.
139. Mr Crow submits that the common law is in a permanent state of
development and should not be allowed to stultify. Ms Rose submits, by contrast,
that the fundamental common law rights summarised in para 126 above lie at the
heart of the right to fair treatment before the law and should not be limited or
abrogated in any way. She recognises that the common law has developed the
principles of PII in order to cater for problems of the kind which concern the state,
especially national security. She submits that the state is sufficiently protected by
those principles and that there is no warrant for permitting any kind of closed
material procedure. In these circumstances it is appropriate to consider how PII
works and, to do so in the context of a case like this.
PII – the principles
140. The principles of PII are a construct of the common law which were
developed because it was appreciated that conflict may arise between the public
interest and established rules of discovery and disclosure. They were developed
having regard to the public interest in the administration of justice and other public
interests which precluded or were said to preclude disclosure of materials which
would otherwise be disclosable. As to disclosure, the general principle is that if the
court “is satisfied that it is necessary to order certain documents to be disclosed
and inspected in order fairly to dispose of the proceedings, then … the law requires
that such an order should be made”: see eg Science Research Council v Nassé
[1980] AC 1028, 1071E-F.
141. The principles of PII have developed significantly over the years in a way
which to my mind shows the flexibility of the common law. In Duncan v Cammell
Laird & Co Ltd [1942] AC 624 Viscount Simon LC (with whom the other six
members of the House agreed) made it clear at p 629 that the question whether
documents were subject to Crown privilege, which was the forerunner of PII,
could arise, as in that case, in an action between private parties or, as here, in an
action in which the Crown is a party. Crown privilege could be relied upon in
respect of an individual document or a class of documents. The House of Lords
held that it was for the minister personally to consider the question whether it or
they should not be disclosed on grounds of public interest. Viscount Simon made it
clear at p 642 that disclosure must not be withheld in order to avoid criticism or
embarrassment or to avoid paying compensation. He said at pp 642-643:
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“In a word, it is not enough that the minister of the department does
not want to have the documents produced. The minister, in deciding
whether it is his duty to object, should bear these considerations in
mind, for he ought not to take the responsibility of withholding
production except in cases where the public interest would otherwise
be damnified, for example, where disclosure would be injurious to
national defence, or to good diplomatic relations, or where the
practice of keeping a class of documents secret is necessary for the
proper functioning of the public service. When these conditions are
satisfied and the minister feels it is his duty to deny access to
material which would otherwise be available, there is no question but
that the public interest must be preferred to any private
consideration.”
Viscount Simon had said a little earlier that an objection properly taken by the
minister was conclusive. Although he stressed that the ruling was to be made by
the judge, not the executive, “the proper ruling” was to accept the minister’s
objection. The House thus held that, although the decision excluding such
documents was for the court, it had no discretion in the matter. In short, Viscount
Simon made it clear that a court could never question a claim to Crown privilege if
the claim was made in the proper form.
142. However, in Conway v Rimmer [1968] AC 910 a five member appellate
committee of the House of Lords disapproved the approach taken in Duncan v
Cammell Laird. It held, not only that it was for the court to decide whether Crown
privilege should apply, but also that it was for the court, not the minister, to
balance the competing public interests. Lord Reid said this at p 940:
“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. I do not believe that Lord Simon really meant that
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the smallest probability of injury to the public service must always
outweigh the gravest frustration of the administration of justice.”
143. A little later, at pp 951-952, after quoting the reference in Duncan v
Cammell Laird to “the proper ruling” referred to above, namely to accept the
minister’s view in every case, Lord Reid said:
“In considering what it is ‘proper’ for a court to do we must have
regard to the need shown by 25 years’ experience since Duncan’s
case, that the courts should balance the public interest in the proper
administration of justice against the public interest in withholding
any evidence which a minister considers ought to be withheld.
I would therefore propose that the House ought now to decide that
courts have and are entitled to exercise a power and duty to hold a
balance between the public interest, as expressed by a minister, to
withhold certain documents or other evidence, and the public interest
in ensuring the proper administration of justice.”
Lord Reid then gave a number of practical examples of how the balance might be
struck in different classes of case. He also said at p 953 that he could see nothing
wrong with the judge seeing the documents without their being shown to the
parties. In the event the House of Lords (or at any rate Lord Reid) inspected the
documents and, the House having found (at pp 996-997) that there was nothing in
them which was in any way prejudicial to the proper administration of the relevant
police force or to the general public interest, directed that they be disclosed for use
in the litigation.
144. It is common ground that the current state of the law on what is now called
PII is set out in R v Chief Constable of West Midlands Police, Ex p Wiley [1995] 1
AC 274. In that case, the House of Lords held that there was no justification for a
claim for immunity for the entire class of documents generated by an investigation
into a complaint against the police.
145. I would accept the submission made by Ms Rose that the following
principles correctly state the approach to PII as it has stood until now:
i) A claim for PII must ordinarily be supported by a certificate signed
by the appropriate minister relating to the individual documents in question:
Duncan v Cammell Laird per Viscount Simon at p 638.
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ii) Disclosure of documents which ought otherwise to be disclosed
under CPR Part 31 may only be refused if the court concludes that the
public interest which demands that the evidence be withheld outweighs the
public interest in the administration of justice.
iii) In making that decision, the court may inspect the documents:
Science Research Council v Nassé at pp 1089-1090. This must necessarily
be done in an ex parte process from which the party seeking disclosure may
properly be excluded. Otherwise the very purpose of the application for PII
would be defeated: see the Court of Appeal judgment at para 40.
iv) In making its decision, the court should consider what safeguards
may be imposed to permit the disclosure of the material. These might
include, for example, holding all or part of the hearing in camera; requiring
express undertakings of confidentiality from those to whom documents are
disclosed; restricting the number of copies of a document that could be
taken, or the circumstances in which documents could be inspected (eg
requiring the claimant and his legal team to attend at a particular location to
read sensitive material); or requiring the unique numbering of any copy of a
sensitive document.
v) Even where a complete document cannot be disclosed it may be
possible to produce relevant extracts, or to summarise the relevant effect of
the material: Wiley at pp 306H-307B.
vi) If the public interest in withholding the evidence does not outweigh
the public interest in the administration of justice, the document must be
disclosed unless the party who has possession of the document concedes the
issue to which it relates: see Secretary of State for the Home Department v
MB [2007] UKHL 46, [2008] AC 440 per Lord Hoffmann at para 51.
146. The question then arises, what, if any, use can be made of material which
the court has held cannot be disclosed because of PII. Ms Rose submits that, if the
court concludes that the public interest in withholding the evidence outweighs the
public interest in the administration of justice, then the evidence cannot in any
circumstances be admitted, or relied on by either party. She relies upon R v Lewes
Justices, Ex p Secretary of State for the Home Department [1973] AC 388, per
Lord Simon of Glaisdale at p 407. He said there that Crown privilege is a
misleading expression because it is not in truth a privilege. It refers to the rule that
certain evidence is inadmissible on the ground that to adduce it would be contrary
to the public interest. He recognised that PII has to be weighed against the public
interest in the administration of justice in accordance with Conway v Rimmer. He
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then said that, once the former privilege is held to outweigh the latter, the evidence
cannot in any circumstances be admitted. He added at p 407B-C:
“It is not a privilege which may be waived by the Crown (see Marks
v Beyfus (1890) 25 QBD 494 at p 500) or by anyone else. The Crown
has prerogatives, not privilege. The right to procure that admissible
evidence be withheld from, or inadmissible evidence adduced to, the
courts is not one of the prerogatives of the Crown.”
I will return to this point below.
PII – the facts
147. In the course of the argument, Mr Crow referred the Court to the description
of the PII certification process contained in the Attorney General’s statement made
to the House of Commons on 18 December 1996 following the Matrix Churchill
affair (Hansard (HC Debates) cols 949-58) and the decision in Wiley. In it the
Attorney General noted that PII is subject to the ruling of the court and that, in a
criminal case, when government documents are in issue, the judge examines the
documents and makes the actual decision on disclosure in the light of the facts of
the case. The statement also said that in what it described as the new approach,
ministers would focus directly on the damage that disclosure would cause, the
former division into class and contents claims would no longer be applied and they
would only claim PII when it was believed that disclosure of a document would
cause real damage or harm to the public interest. The statement further said that
the new approach was subject to the supervision of the courts and that it accorded
with the view expressed by the then Lord Chief Justice that PII “should only be
claimed for the bare minimum of documents for which the claim of serious harm
can be seen to be clearly justified.” Finally, the statement referred to the kinds of
serious harm which might be involved.
148. Mr Crow described the certification process in a little more detail in this
way. Lawyers consider material to see if it passes the threshold test for disclosure
under CPR Part 31. In so far as it is prima facie disclosable, officials review
material for potential to cause harm to the public interest. If harm to the public
interest is identified, the department carries out a balance between harm caused by
the disclosure on the one hand and injustice in the litigation on the other. It also
considers whether it is possible to redact or gist the information or to make
admissions of fact. Officials consider whether and to what extent the balance falls
against disclosure in order to give advice to the minister as to whether to certify. If
the minister, having considered the advice, decides that a certificate should be
given, a PII certificate is prepared which includes a disclosable certificate or
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schedule describing the types of harm that might be caused to the public interest
and a sensitive schedule as to why it is believed that disclosure of documents
would cause real damage or harm to the public interest.
149. After the minister has signed a PII certificate, the balance between the
relevant public interests must be made by the judge. In a simple case he will hear
argument on both sides and reach a conclusion, often having looked at the
documents. There will be no need for special advocates. The position may be very
different in a case of complexity, especially a case of great complexity such as this
was or would have been but for the settlement. The judge may need assistance in
order carry out the balance. Such assistance will not of course be available from
counsel for the non-state parties because they will not have seen the documents.
PII – special advocates
150. It is common ground between the parties that it is in principle permissible
for the court to approve the appointment of one or more special advocates to
peruse the documents at an appropriate stage in order to assist the judge to decide
how the balance should be struck between the public interest in disclosure and the
public interest in non-disclosure. It is thus common ground that the court has the
power to give such approval and, no doubt, to make other ancillary orders as to
what the special advocate should do. In my opinion the court does have such a
power at common law. Just as the House of Lords recognised in R v H [2004]
UKHL 3, [2004] 2 AC 134, that the court had power at common law to give such
approval in the context of criminal proceedings, so I would accept that there is
such a power in this context. This is to my mind a classic example of the measured
development of the common law in confronting and solving new problems. As
Lord Bingham put it extra-judicially in The Business of Judging, 2000, p 29, “the
last quarter century has seen fundamental, Judge-made changes in the law relating
to [PII]”.
151. The most obvious role for a special advocate would be to look at the
documents which are the subject of a certificate and consider how the balance
should be struck. In a complex case like this the exercise would be close to
impossible for the judge to do on his own without assistance. One or more special
advocates would to my mind be essential. It may be that in such a case it would be
sensible for the special advocates to be allowed to see the documents at an early
stage in order to avoid or minimise delay, but that would depend upon the facts of
the case. However that may be, as I see it the use of special advocates would be (or
would have been) necessary here in order to enable the judge to carry out the
balancing exercise.
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Should the PII exercise be abandoned?
152. The appellants proposed that there should be a closed material procedure
instead of the well recognised and accepted PII procedure, partly if not largely
because of the enormous scale of the PII disclosure exercise and the
impracticability of carrying it out. I am quite unable to accept that, at any rate in
the absence of Parliamentary intervention, that was a sufficient reason for
abandoning the established PII procedure and replacing it with some form of
closed procedure at common law. As I see it, whatever procedure was adopted, it
would have been necessary for the appellants to identify what documents were
relevant and in principle disclosable under CPR Part 31. In addition it would have
been necessary for the minister to decide which of those documents should not be
disclosed in the public interest. That in turn would have required officials to
identify which documents potentially came into that category in order to enable the
minister to carry out the appropriate balance. A detailed review of the documents
would have had to be carried out whether the procedure adopted was the PII
procedure described above or the proposed closed procedure. In both cases it
would have been necessary for the relevant documents to be identified and the
balance struck.
153. The critical difference between the two approaches is not that part of the
exercise but what happens thereafter. Since the first part of the exercise has to be
carried out in any event, I can see no reason for abandoning the PII exercise.
Procedure after the balance is struck
154. In the ordinary case, where PII proceeds as outlined above and there is no
closed procedure of the type sought, if the judge rules that some of the documents
should not be disclosed because they attract PII, the position to date has been that
identified by Lord Simon of Glaisdale in the Lewes Justices case, namely that they
are not disclosed or produced to the non-state parties and are not admissible in
evidence. In a criminal case, as explained in R v H [2004] 2 AC 134 and other
cases, where the judge rules that they are necessary for the defence case, the
prosecution must either disclose them or abandon the prosecution.
155. In a civil case of this kind Ms Rose submits that the effect of the PII rules is
that (1) the court strikes the balance between the competing public interests, while
duly acknowledging the opinion and expertise of the Secretary of State and those
advising him; (2) the public interest in the administration of justice is given full
weight; and (3) whatever the outcome of the exercise, the principles of natural
justice and equality of arms are always preserved; both parties are equally treated
in relation to the use which may be made of the sensitive material.
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156. Mr Crow submits that that is far from a satisfactory result because in a case
of this kind it may well be the position that the claimants are able to deploy their
evidence in support of their claims, whereas, by reason of the inadmissibility of
evidence which, but for the necessity to certify PII, would be admissible and upon
which the appellants would wish to rely at the trial, the appellants are unable to
defend the action, either at all or sufficiently. He submits that both parties have the
right to a fair trial and that in such circumstances the trial would not be fair to both
parties. He submits that it is in these circumstances that justice requires some form
of closed procedure and that the court must have power at common law to permit
it. There is to my mind considerable force in that submission. In Tariq v Home
Office [2011] UKSC 35, Lord Brown describes at para 84 the suggestion that,
where the defendants cannot defend themselves at all, it matters not because they
can simply pay up as preposterous.
157. Another possibility canvassed in the course of the argument is for the court
to decide that it would not be appropriate for a closed procedure to be introduced
for the reasons given by Ms Rose but that the correct course would be to stay or
strike out the action because, by reason of circumstances beyond the control of
both parties, it was not possible for there to be a fair trial and that the just course
was not to have a trial. It was in this connection that the court was referred to
Carnduff v Rock [2001] EWCA Civ 680, [2001] 1 WLR 1786. In that case a
registered police informer brought an action against a police inspector and his
chief constable to recover payment for information and assistance provided to the
police. The Court of Appeal struck out the action on the basis that a fair trial of the
issues arising from the pleadings would require the police to disclose sensitive
information which it would be contrary to the public interest to force the police to
disclose. Laws LJ said at para 36 that “a case which can only be justly tried if one
side holds up its hands cannot, in truth, be justly tried at all”. It is perhaps
noteworthy that the claimant complained to the European Court of Human Rights
in Strasbourg on the basis that his right of access to the court under Article 6 of the
Convention had been infringed. His complaint was rejected as unfounded:
Carnduff v United Kingdom (Application No 18905/02) (unreported) 10 February
2004.
158. I note in this regard that in Tariq v Home Office [2011] UKSC 35 Lord
Mance says (at para 40) that the striking out of the action for these reasons is not
an option that the law should readily contemplate. By contrast, Lord Kerr says at
para 110 that it is a more palatable course than to adopt a closed procedure. There
is plainly a tension between these two approaches, which in my opinion should be
resolved on the facts of a particular case. It is not quite clear to me what approach
Lord Dyson would take to the question whether the action should be struck out on
what may be called Carnduff principles in a case of this kind.
Page 52
A possible solution
159. It appears to me that the way forward is or should be along these lines.
After the PII process described above it should be for the parties to consider their
respective positions and then to make representations to the judge as to the
appropriate way forward. Depending upon the submissions advanced, the judge
may wish to consider the three possibilities to which I have referred. They are (1)
that the matter should proceed in the traditional way with the PII material simply
being treated as both undisclosable and inadmissible and the trial proceeding on
the basis of the disclosed and admissible evidence; (2) that the action should be
stayed or struck out on the basis that through neither party’s fault a fair trial is not
possible; and (3) that there should be some form of closed procedure, involving
special advocates, along the lines suggested by the appellants, but subject to the
exigencies of the particular case.
160. The stance taken by the protagonists at that stage would no doubt depend
very much upon the circumstances at the time. Thus the claimants might adopt the
stance now taken by Ms Rose. On the other hand, they might conclude that there
were advantages in some form of closed procedure, especially if their case was
thought to depend to any significant extent upon documents in the possession of
the defendants. The defendants might also adopt a different position depending
upon the circumstances. However, as things stand at present, they might be
expected to contend in every such case that the action should be struck out on the
ground that, without the documents and/or evidence to which PII attached or
would attach, a trial which was fair to both parties including the defendants would
not be possible.
161. In that event, the claimants might well perceive it to be in their interest to
consent to agree to a closed procedure of some kind as an alternative to their
claims being struck out. I understood it to be common ground between the parties
that there would be no objection in principle to such consent being given. It was
not contended on behalf of the appellants that, if consent was given, such a
procedure was contrary to principle. Indeed, it follows from Mr Crow’s
submission that it would be appropriate even without consent that, a fortiori, it
would be appropriate with consent.
162. If a closed procedure were in principle a possibility, the precise nature of it
would no doubt depend upon the circumstances of the particular case. It is only at
the conclusion of the PII process that the question whether to direct some form of
closed material procedure would arise. That will not of course happen in this case
because it has settled. By the time the question comes to be decided in a specific
case, Parliament may have intervened. It was suggested in the course of the
argument that the common law should not consider inventing some form of closed
Page 53
material procedure but should leave it to Parliament. I agree that it would be better
for the problems which arise in this class of case to be dealt with by Parliament. I
understand that a green paper is in prospect and that thought is being given to
possible Parliamentary intervention. The approach of Parliament would plainly be
potentially critical to the appropriate way forward at the conclusion of the PII
procedure.
163. However, it may be that the question what directions should be given may
arise in a case in circumstances (as occurred for example in A v HM Treasury (Nos
1 and 2), as explained in the Court of Appeal: see [2008] EWCA Civ 1187, [2010]
2 AC 534 at paras 59 and 64-65), where for one reason or another there has been
delay and where Parliament has not decided whether or not to intervene or,
perhaps, where it has decided not to intervene. In such circumstances the court
would have to decide what, if any, novel procedure to adopt. As appears below the
court has adopted novel procedures in not dissimilar situations, no doubt by way of
development of the common law and pursuant to its obligation under the CPR Part
1 to act justly. In considering the relationship between the role of Parliament and
the role of the common law, Lord Bingham said in The Business of Judging at pp
386-387 that regard should be had to any relevantly analogous statute and that he
saw no reason “why statute and the common law should not feed and refresh each
other”.
164. I see no reason in principle why the common law should not be able to
develop along these lines. There are many statements in the books of the flexibility
of the common law. As Lord Slynn of Hadley memorably put it in Kuddus v Chief
Constable of Leicestershire Constabulary [2001] UKHL 29, [2002] 2 AC 122, at
para 33, “the genius of the common law is its capacity to develop”. See also, for
example, Sir Frederick Pollock in The Genius of the Common Law (1912) at p 45
and Lord Denning MR in Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2
QB 67. In so far as such a development would be a development of the common
law of PII, it would be no more than a further development of a process which, as
Lord Bingham put it in 2000, has been taking place over the last quarter of a
century.
165. In these circumstances I would not grant a declaration such as that granted
by the Court of Appeal. The common law should in my opinion very rarely, if
ever, say never. Moreover, the argument in this appeal has persuaded me that it is
not appropriate to make a declaration such as that granted by the Court of Appeal
in a vacuum. The court should consider what orders to make in the context of a
specific case.
166. I turn to consider the terms of the declaration which was granted. In it the
Court of Appeal distinguishes between “ordinary” or “normal” civil claims and
Page 54
those which involve “a substantial public interest dimension”. I note in this context
that in the declaration granted by the judge he referred to “a civil claim for
damages”, whereas the Court of Appeal added the word “ordinary”. In its
judgment at paras 59, 61, 63-67 and 71, it distinguished the various cases relied
upon by the appellants on the ground that they were not ordinary civil claims for
damages. Some were criminal cases: see R v Shayler [2002] UKHL 11, [2003] 1
AC 247 and R v H. Others were civil cases of various kinds. They include
Secretary for State for the Home Department v Rehman [2001] UKHL 47, [2003]
1 AC 153; R (Roberts) v Parole Board [2005] UKHL 45, [2005] 2 AC 738, R
(Malik) v Manchester Crown Court [2008] EWHC 1362 (Admin), [2008] 4 All ER
403; A v HM Treasury and R (AHK) Secretary of State for the Home Department
(Practice Note) [2009] EWCA Civ 287, [2009] 1 WLR 3049. It is true that none
of those cases involved an ordinary civil claim for damages, by which it appears
from paras 59 and 71 that the Court of Appeal meant a case in which the court was
simply an arbiter.
167. The reasons for the Court’s view can be seen from its concluding remarks at
paras 68 to 71. It expressed concern at para 69 that a procedure which is said to
apply only in exceptional circumstances often becomes common practice. It then
expressed these conclusions at paras 70 and 71:
“70. The importance of civil trials being fair, the procedures of the
court being simple, and the rules of court being clear are all of
cardinal importance. It would, in our view, be wrong for
judges to introduce into ordinary civil trials a procedure which
(a) cuts across absolutely fundamental principles (the right to
a fair trial and the right to know the reasons for the outcome),
initially hard fought for and now well established for over
three centuries, (b) is hard, indeed impossible, to reconcile
satisfactorily with the current procedural rules, the CPR, (c) is
for the legislature to consider and introduce, as it has done in
certain specific classes of case, where it considers it
appropriate to do so, (d) complicates a well established
procedure for dealing with the problem in question, namely
the PII procedure, and (e) is likely to add to the uncertainty,
cost, complication and delay in the initial and interlocutory
stages of proceedings, the trial, the judgment, and any appeal.
71. We leave open the question of whether a closed material
procedure can properly be adopted, in the absence of statutory
sanction in an ordinary civil claim such as the present, where
all the parties agree, or in a civil claim involving a substantial
public interest dimension (ie where the judge is not simply
sitting as an arbiter as between the parties). Both principle
and the authorities relied on below seem to us to suggest that
Page 55
a different conclusion may well be justified in such cases,
albeit only in exceptional circumstances, but that is an issue
which should be considered as and when it arises.”
168. Save that I am not persuaded that an appropriate procedure could not be
devised which is consistent with the CPR, I entirely accept the fundamental
principles summarised in para 70. However, I do not think that there is any
principled distinction between an ordinary civil claim and any other civil claim for
these purposes. In any event, if there is potentially such a distinction, this is surely
a case in which there is a public interest in the issue involved, at any rate on the
approach I have identified. The issue which has given rise to the question in this
appeal is what is the correct approach to the fact that the appellants have what may
be a valid claim to PII. The question is what to do when such a claim is made and,
in particular, what to do when the minister issues a PII certificate. The public
interest self-evidently plays a central part in the resolution of those questions. So,
if there is a distinction between ordinary civil actions and those involving a
substantial public interest dimension, this case falls on the latter side of the line.
169. On the question whether there is a principled difference between ordinary
civil actions and others I would accept Mr Crow’s submissions on behalf of the
appellants, which were shortly to this effect. First, no such distinction has been
drawn in the past. Secondly, the question in this appeal is whether a closed
material procedure can ever be adopted in the case of a civil claim for damages.
Distinctions between different claims for damages are irrelevant for the purposes
of answering that bald question. The distinction may be relevant to the answer to
the question whether an order should be made in a particular case. Thirdly none of
the cases in which an exception has been made to the principle that all the material
must be shown to both parties in every case depends upon this distinction. They
all depend upon what the interests of justice demand. None of them depends upon
a classification of the kind adopted by the Court of Appeal: see eg the wardship
and children cases, including In re T (Wardship: Impact of Police Intelligence
[2009] EWHC 2440 (Fam), [2010] 1 FLR 1048, Chief Constable v YK [2010]
EWHC 2438 Fam and In re D (Minors) (Adoption Reports: Confidentiality) [1996]
AC 593, 615, per Lord Mustill. There have been other examples in the field of
commercial confidentiality; see for example British Sky Broadcasting Group plc v
Competition Commission [2010] EWCA Civ 2, [2010] 2 All ER 907.
170. Fourthly, there is no principled basis for accepting that the court can
properly adopt a closed material procedure (subject to appropriate safeguards)
when government action is subject to judicial review but not when the same action
is subject to a claim in tort for damages. The differences between the two
procedures are irrelevant to this question. Both may involve identical questions of
law and fact. Both may involve the examination of the same evidence and
examination and cross-examination of witnesses: see eg R (Al-Sweady) v Secretary
Page 56
of State for Defence [2009] EWHC 2387 (Admin), [2010] HRLR 12. Fifthly, the
boundaries of the two classes of case are often blurred. I note, for example that in
R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 1)
[2008] EWHC 2048 (Admin), [2009] 1 WLR 2579, the claims were in part for
judicial review and in part for Norwich Pharmacal relief: see Norwich Pharmacal
Co v Customs and Excise Comrs [1974] AC 133. The natural process for the latter
would be by ordinary action. It is of interest to note in passing that there were there
both open and closed hearings and cross-examination by a special advocate, no
doubt by consent between the parties.
171. In these circumstances, I would not accept the jurisdictional distinction that
the Court of Appeal draws between ordinary civil claims and other civil claims. It
appears from para 71 of the judgment quoted above that, subject to that distinction,
the Court of Appeal accepted that both principle and the authorities relied on
before the judge suggested that a different conclusion may well be justified in such
cases, albeit only in exceptional circumstances, but said that was an issue which
should be considered as and when it arose.
172. I appreciate that, as both Lord Dyson and the Court of Appeal have pointed
out, the issues of jurisdiction were not argued in those cases. That was certainly
true in the two cases referred to in which I played a part, namely A v HM Treasury
and the AHK case. It is also true that, as the Court of Appeal pointed out, the
decision in Ahmed was reversed by this court. The principles relevant to this case
were not however commented upon adversely. They are summarised at para 58 of
A and at para 17 et seq of AHK.
173. Both cases involved the appointment of special advocates without express
statutory authority. They are to much the same effect. So I refer only to para 58 of
A, where I said this:
“There is so far no statutory power to appoint a special advocate in
proceedings arising out of a [Terrorism Order]. However, as I see it,
there is no reason in principle why a special advocate should not be
appointed in a particular case. The authorities show that in an
appropriate case the court would have power to authorise or request
the use of a special advocate: see in particular the decision of the
House of Lords in R (Roberts) v Parole Board [2005] 2 AC 738,
where it was held that the court had power to do so even where it
was not sanctioned by Parliament. Whether it should do so or not
would depend on the particular circumstances of the case. It has very
recently been held by the Divisional Court in … Malik … that the
court has power to ask the Attorney General to appoint a special
advocate, but that it should only do so in an exceptional case and as a
Page 57
last resort: per Dyson LJ, giving the judgment of the court, at paras
93-102, especially, at para 99. In these circumstances the court
would have power to procure the appointment of a special advocate
through the Attorney General.”
174. I am not persuaded by Ms Rose’s submissions that the principles do not
remain sound and applicable in an appropriate case. However, all depends upon
the circumstances of the particular case and I agree with the view expressed in the
Court of Appeal in para 71 (quoted above) that the issue of their correctness and
application to the circumstances should be decided when they arise in a particular
case.
175. If they ever arise in a context like this, it will be in very different
circumstances from any of the other cases. If they arise in a case of this kind it
will be necessary to examine in detail the relationship between (a) PII and its
application in this type of case, (b) the principle in Carnduff v Rock, including its
correctness and its application and relationship to PII and (c) the prospect of
fashioning a procedure which will on the one hand retain the principles of PII and
on the other hand enable the action to proceed in a way which will provide a fair
trial to both parties, while respecting their fundamental rights, including the
fundamental rights of the claimants relied upon by Ms Rose. In reaching these
conclusions I do not wish to understate the fundamental nature of those rights. It
follows that any new procedure which affected them should only be adopted by the
common law in most exceptional circumstances. Whether those circumstances
exist will depend upon the facts of the particular case and should only be
determined in that context.
176. Since writing the above, I have had the opportunity of reading Lord
Dyson’s judgment in draft. I entirely understand his concern (and that of the Court
of Appeal) that a principle that a closed procedure could be used only in
exceptional circumstances may become the thin end of the wedge. However, in
my opinion the judges can be relied upon to ensure that that will not happen. The
test would be one of necessity: see Scott v Scott [1913] AC 417, per Viscount
Haldane LC at pp 436-439.
177. As Lord Dyson himself recognises at paras 63 and 64, various exceptions to
the fundamental principles he describes have been recognised by the common law.
These show that, although fundamental, the principles are not absolute and must
yield where it is necessary in the interests of justice that they do so. As Lord
Dyson puts it at para 64 in the context of confidentiality, such claims by their very
nature raise special problems which require exceptional solutions (his emphasis).
If the judge concludes after carrying out the PII balancing exercise that it is
Page 58
necessary to have some form of closed process, that same principle would permit
such a process at common law.
178. Thus, at the conclusion of the PII process it will be necessary for the judge
to decide how to proceed. If he is persuaded that it is necessary in the interests of
justice that some form of closed process should take place, I can see no reason why
such a process should not be followed. If, as is common ground, it was open to the
courts to develop the common law in children or wardship cases or in
confidentiality cases on the ground that it was necessary to do so in the interests of
justice, the same principle should apply here. I appreciate that this is at the end of
what has hitherto been described as the PII process. However, what to do at that
point can to my mind fairly be regarded as part of that process. It is certainly very
closely related to it.
179. As stated above, at that stage the whole process and the way forward will
have to be reviewed by the judge in the light of the submissions of the parties.
Much will depend upon those submissions. In this regard it is important to note
that those submissions will depend upon the facts of the particular case. Thus in a
case of this kind, where the state organs are the defendants in a civil claim, the
position may be very different from a case in which the state has asserted or is
asserting rights against a non-state party and it is the latter which needs
information in order to enable it to defend its position. In the former case, as
explained above, if the judge concludes that, absent some closed procedure the
claim should be struck out because a fair trial to both parties is not possible, the
claimant may consent to a closed procedure in order to allow his claim to proceed.
In that event the action will proceed on the basis of some appropriate closed
procedure. No question of necessity will arise. On the other hand, if the judge
declines to strike the claim out, the defendants might seek an order for such a
procedure based on necessity, namely that such a procedure would be necessary in
order to permit a fair trial. Whether this is a realistic possibility should in my
opinion be left for decision in a concrete case.
180. A closed procedure might also be necessary in a case in which it is the nonstate party which wishes to rely upon the material which would otherwise be
subject to PII in order to defend itself in some way against the state. In such a case
either party might seek an order for such a procedure based on necessity, namely
that such a procedure would be necessary in order to permit a fair trial.
181. These considerations to my mind demonstrate the importance of leaving the
question of what, if any, procedure is permissible, to be determined in the context
of a specific case. The court should not in my judgment now rule out the
possibility of some form of closed procedure in any case in circumstances in which
it is not possible to predict what may happen in the future. All should depend upon
Page 59
the particular circumstances after the judge has struck what may be called the PII
balance.
182. In this regard the decision in R (Mohamed) v Secretary of State for Foreign
and Commonwealth Affairs (No 2) [2009] EWHC 152 (Admin), [2009] 1 WLR
2653 is instructive. At para 34 Thomas LJ set out four questions that arise when
carrying out the balancing test:
“(i) Is there a public interest in bringing the redacted paragraphs
into the public domain?
(ii) Will disclosure bring about a real risk of serious harm to an
important public interest, and if so, which interest?
(iii) Can the real risk of serious harm to national security and
international relations be protected by other methods or more
limited disclosure?
(iv) If the alternatives are sufficient, where does the balance of the
public interest lie?”
183. Thomas LJ then identified factors relevant to determining where the balance
of public interest lies. He did so under four headings: (i) the public hearing; (ii)
making decisions and reasons public; (iii) public justice, the rule of law, free
speech and democratic accountability; and (iv) the role of the media. In discussing
the need to uphold the rule of law, he said, at para 41 that “the more serious the
alleged infringement of the rule of law, the more strongly that principle applies”
and at para 46 he emphasised that “the provision of information … which enables
public debate to take place and democratic accountability to be made more
effective is one of the bases on which democracy rests”.
184. Although the Court of Appeal expressed some disagreement with the
Divisional Court on the facts, while they do not say so expressly, as I read their
judgments, they agreed with its general approach in principle: see [2010] EWCA
Civ 65, [2011] QB 218, per Lord Judge CJ at para 51, Lord Neuberger MR at para
187 and Sir Anthony May P at para 290. At para 295 Sir Anthony emphasised that
the balance is not to be struck by the Foreign Secretary but by the court. As I read
the judgments in Mohamed in both courts, in addition to that principle, they
support these further propositions. First, the rule of law and the democratic
requirement that governments be held to account mean that the case for disclosure
will always be very strong in cases involving alleged misconduct on the part of the
state and, secondly, that the more serious the alleged misconduct on the part of the
state, the more compelling the national security reasons must be to tip the balance
against disclosure.
Page 60
185. As I see it, the special advocates will have a significant role at that time
because under the present system they will have played a substantial part in the
consideration of which documents are relevant and which are (and which are not )
subject to PII. In doing so, they will have learned a good deal about the issues
between the parties and will have been able to make submissions to the judge on
the question how the balance should be struck by the judge as between disclosure
and non-disclosure. This might include inviting the judge to consider the balance
between the public interest in non-disclosure on the one hand and the public
interest in disclosure having regard to the importance of each in the particular
context, which would or might include the importance of ensuring that the state
does not abuse its power or the rights of the citizen.
186. Equally special advocates would be likely to be valuable in the future, not
only in the context of striking that balance, but also both in a consideration of the
question which may arise at the end of the PII process as to whether a non-state
claimant should consent to some form of closed procedure or, in the case of a nonstate defendant, whether the circumstances meet the requirement of necessity such
as to justify a closed evidence procedure. In order to carry out these functions
effectively and to provide a substantial measure of procedural justice to the party,
it may well be that in the future special advocates will need to be permitted to
communicate with the party and the parties’ representative. The Joint Committee
on Human Rights has long advocated relaxation of the rule against communication
between special advocates and non-state parties, most recently in its report
“Counter-Terrorism Policy and Human Rights (Sixteenth Report): Annual
Renewal of Control Orders Legislation” (2010) HL Paper 64, HC 395. This is
essentially an issue for Parliament but it may also be an issue which, in the absence
of Parliamentary intervention, a judge considering whether to order a closed
procedure will wish to address, although proper safeguards would of course have
to be put in place to protect the public interest. As ever, all would depend upon the
circumstances.
187. Finally, I should add that I am not persuaded that there is anything in the
CPR which prevents an appropriate process being developed. I respectfully doubt
that the CPR require an adversarial process at every point. In the pursuit of the
overriding principle of dealing with cases justly it may well be necessary to
introduce inquisitorial elements, as for example where the judge looks at some
evidence which both parties do not. Further, for my part, I would not accept the
argument that there is no significant difference in this context between a criminal
case and a civil case. The decision in R v Davis [2008] UKHL 36, [2008] AC 1128
is of importance but it was a criminal case, where I well understand that the
importance of the defendant being able to confront his accusers may be critical.
The same may be much less important in a civil case, especially where the state is
the defendant and not the accuser.
Page 61
Conclusion
188. In all the circumstances I would allow the appeal and set aside the
declaration granted by the Court of Appeal. I would do so because I can envisage
circumstances in which it might be appropriate to develop the common law by
directing that some form of closed material procedure take place. Such a
development would, as I see it, be a further step in the courts’ approach to PII
which has already changed step by step without statutory assistance since Duncan
v Cammell Laird. For my part I would not replace the declaration granted by the
Court of Appeal with the declaration granted by the judge. I would simply leave
these issues to be further considered in the light of the facts of a specific case.
LORD PHILLIPS
189. I have considered the judgments of Lord Clarke and Lord Dyson. I agree
with Lord Brown that each makes a compelling case. That case relates, however,
to a general issue which did not arise on the facts of this case. Could the common
law ever permit a closed material procedure to be used in litigation involving a
civil claim? That issue is now doubly academic as this litigation has now been
settled. The preliminary issue with which the Court of Appeal was concerned was
a narrower one.
190. Lord Clarke has set out that issue at para 123 of his judgment. It is
important to appreciate the full import of the issue. What was proposed was an
alternative to the manner in which public interest immunity (“PII”) is dealt with
under the conventional process of discovery. What the conventional exercise
involves is summarised by Lord Clarke at para 145 of his judgment. What that
conventional exercise was likely to involve on the facts of the case is set out by
Lord Clarke at para 135.
191. The proposed scheme, as set out in the preliminary issue, was a procedure
which was intended to replace the conventional exercise. It would not be
necessary, in the case of each document, for the minister and the court to balance
the damage that would be done to the public interest if the document were
disclosed against the damage to the administration of justice if it were not. Instead,
any documents disclosure of which would be contrary to the public interest, as
broadly defined in the preliminary issue, would be dealt with by the “closed
material procedure” as defined.
192. Lord Clarke comments at para 130 that he cannot conceive of
circumstances in which the court could properly make an order for the use of
Page 62
“closed material procedure” as defined. And at para 152 he states that such a
course would require Parliamentary intervention. I agree. The common law
develops incrementally. The change envisaged by the preliminary issue would be
fundamental. Only Parliament could bring about such a change.
193. This reasoning would have sufficed to enable the Court of Appeal to give a
negative answer to the preliminary issue, and I consider that it would have been
more satisfactory had the Court taken this course. In the event the Court of Appeal
gave the following reasons of principle for giving a negative answer to the
preliminary issue [2010] 3 WLR 1069:
“30. In our view, the principle that a litigant should be able to see
and hear all the evidence which is seen and heard by a court
determining his case is so fundamental, so embedded in the common
law, that, in the absence of parliamentary authority, no judge should
override it, at any rate in relation to an ordinary civil claim, unless
(perhaps) all parties to the claim agree otherwise. At least so far as
the common law is concerned, we would accept the submission that
this principle represents an irreducible minimum requirement of an
ordinary civil trial. Unlike principles such as open justice, or the
right to disclosure of relevant documents, a litigant’s right to know
the case against him and to know the reasons why he has lost or won
is fundamental to the notion of a fair trial.”
194. Later in its judgment the Court of Appeal ranged more widely. It considered
at para 51 the use of a closed material procedure after the conclusion of a
conventional PII exercise, observing at para 53 that this was “not the closed
material procedure as defined in the preliminary issue”.
195. It is not always easy to determine in some parts of the judgment of the
Court of Appeal whether it was addressing the closed material procedure as
defined in the preliminary issue, or a closed material procedure of some other
description. This is particularly true of the last paragraph of its judgment:
“We leave open the question of whether a closed material procedure
can properly be adopted, in the absence of statutory sanction in an
ordinary civil claim such as the present, where all the parties agree,
or in a civil claim involving a substantial public interest dimension
(ie where the judge is not simply sitting as an arbiter as between the
parties). Both principle and the authorities relied on below seem to
us to suggest that a different conclusion may well be justified in such
Page 63
cases, albeit only in exceptional circumstances, but that is an issue
which should be considered as and when it arises.”
196. I consider that the judgment of the Court of Appeal should be treated as
applying only to the preliminary issue with which it was concerned. Whether the
general principles applied by the Court of Appeal would necessarily preclude the
use of a different closed material procedure, not as a substitute for the conventional
PII exercise, but to mitigate the injustice that can occur when relevant evidence is
excluded from disclosure because of PII, is a question that should be left open until
it actually arises, just like the question left open by the last paragraph of the Court
of Appeal’s judgment.
197. It follows that I do not propose to go down the hypothetical road followed
by Lord Clarke in that part of his judgment that begins at para 154. Nor do I
propose to consider the merits of Lord Dyson’s dissent from that part of Lord
Clarke’s judgment. I would dismiss this appeal on the narrow ground set out in
para 192 above.
LORD RODGER
198. Lord Rodger, who died before judgment was given in this case, had
indicated that he would have dismissed the appeal.
