Government not required to disclose full details of defence

CF v The Ministry of Defence and others [2014] EWHC 3171 (QB) – read judgment

Angus McCullough QC of 1 Crown Office Row acted as Special Advocate in this case. He has nothing to do with the writing of this post.

The High Court has ruled that in a case against the state which did not directly affect the liberty of the subject, there was no irreducible minimum of disclosure of the state’s case which the court would require. The consequences of such disclosure for national security prevailed.

Factual and legal background

The claimant, Mohammed Ahmed Mohamed, had made a number of claims against various government departments, alleging complicity in unlawful and arbitrary detention and inhuman and degrading treatment and torture on the part of British authorities in Somaliland.  He also sought damages for trespass, breach of the Human Rights Act 1998, and misfeasance in public office. As Irwin J said,

The remedy sought is not confined to ordinary compensation, but extends to damages for breach of the Convention and to declaratory relief, which in the context of this case, and if the Claimant succeeded, would represent an important marking of unlawful behaviour: a matter in which there is a legitimate public interest.

In this hearing the claimant sought further disclosure of the defence in his claim against government departments, where a closed material procedure had been permitted under Section 6 of the Justice and Security Act 2013.

CF submitted that he was in the dark as to the defendants’ position in the claim, as they had made a general denial of wrongdoing but had not specifically denied all his allegations. He therefore argued that it was is essential, in the interests of justice and to achieve conformity with Article 6, that there should be disclosure of “a substantial amount of information”, and that as a minimum, he should be provided with a response to each specific allegation, in the form of admission, non-admission or denial, and that he should be given “an intelligent, balanced and accurate summary of the defendants’ positive case”.

The Court’s decision

The application was refused.  In a case not directly affecting the liberty of the subject, there was no irreducible minimum of disclosure, or necessary minimum revelation by summary or gist of the defendants’ case, which the court would require despite the consequences for national security. Even though CF’s case had potentially important issues of public interest, it was essentially a claim for compensation. The court had to conduct a balancing exercise, bearing in mind the competing principles of maximising the trial’s fairness and the preservation of national security. Both injustice to a claimant and injustice to the state were to be avoided. The latter would arise if disclosure would so compromise national security that the state was compelled to settle what could be an unmeritorious claim.

The court rejected CF’s submission that Carnduff v Rock [2001] EWCA Civ 680 was relevant only in the context of public interest immunity; on the contrary, an unjust victory, achieved only because a case was untriable, had to be avoided if at all possible. This would be the inevitable outcome if the government could not properly defend its case without compromising intelligence information.  A proper adjudication on the facts, even if all the facts could not be public, had to be a superior outcome to an unmerited loss by either side. The public interest was also served by a trial and done a disservice by a default outcome.

If the state lost by default, there would be an unjust payment, and there would be no scrutiny of what had been done in the state’s name. The court was unable to spell out in open judgment its consideration of the arguments in the closed proceedings.

In this case, the court had carefully considered the material the defendants had relied on in applying for the s.6 declaration, which was the most central material in the case. It had seriously considered whether some of that could be released without damaging national security, but that was not possible. Irwin J was also persuaded that the Strasbourg authorities supported this approach; he cited Lord Mance in Tariq v Home Office :

[he] concluded that the European jurisprudence set out in Kennedy, meant that, subject to safeguards sufficient for the case in hand:
“… national security considerations may justify a closed material procedure, closed evidence (even without the use of a special advocate) and, furthermore, (as in Kennedy itself) a blanket decision leaving the precise basis of determination unclear.”

The material was cross-referential; there could not be disclosure of any meaningful part of it without leading on to the remainder. For those reasons, and for reasons expressed in the closed judgment, no useful additional disclosure was possible without severe compromise of national security.

 I wish to stress that in approaching this decision I have not applied a government policy of “neither confirm nor deny”, far less watched such a flag be hoist up a flagpole and responded with an automatic salute. I have considered with close care the body of material which was relied on by the Secretary of State in applying for the declaration under Section 6, and which, as I observed in the previous judgment, is the most central material in the case. I have given genuinely anxious thought to whether some of the material could be released without creating damage to national security. I do not believe that is possible.

The safeguards would be the special advocates’ assistance and a careful consideration of the inferences to be drawn. There was no important matter in the case where CF’s case was unknown and the special advocates would be unaware of the case they had to put.

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