The “uneasy” co-existence of public interest immunity and closed material procedure

CF v Security Service and others and Mohamed v Foreign and Commonwealth Office and others [[2013] EWHC 3402 (QB) – read judgment

The High Court has today made the first court ruling on the use of the Justice and Security Act 2013 in a civil claim for damages.

In a ruling on preliminary issues, Irwin J made a declaration that the government can make a closed material application to the court in this case. The Court also ruled on PII. The following summary is based on the Court’s press release.

Factual background

CF and Mohammed Ahmed Mohamed are both British citizens of Somali descent. CF left the United Kingdom in 2009, Mohammed Ahmed Mohamed having left in 2007. They were both detained by the Somaliland Authorities on 14 January 2011. They were then detained until removal to the UK on 14 March 2011. Each claims that they were unlawfully detained, tortured and mistreated during the period of detention in Somaliland.

Procedural history

The were two preliminary issues to be determined by the judge:

1.  To determine the public interest immunity application, in so far as it relates to material the disclosure of which is not claimed by the Defendants to be damaging to the interests of national security.
2. Provided that by 4.00pm on Friday 12 July 2013, the Justice and Security Act 2013 (JSA) is in force, to determine whether the court will make a declaration that a closed material application may be made to the court.

The process of considering an application to withhold information from disclosure on the grounds of public interest (a PII application), and the procedures laid down under the JSA were “very different”, and in their essence may be thought of as conflicting. In his leading judgment in Al Rawi v Security Service [2012] 1 AC 531 Lord Dyson described a closed procedure as “the very antithesis of PII”.”

The JSA permits the State to establish a regime, if the relevant criteria are established in the case in hand, allowing evidence to be adduced in private, under strict conditions which do not threaten national security. As Irwin J observed,

This can avoid the need for a concession which threatens or carries injustice for the State. It imports a corresponding risk of injustice to the claimant acting against the state, whose case will now be met by evidence he never hears and cannot answer.(para 18)

The judge concluded that the court could make a declaration, and adopt a closed material procedure, before disclosure had been given and without a PII claim having been made or determined. The question of whether it was in the interests of the fair and effective administration of justice in the proceedings to make a declaration should turn on the specific circumstances of the case in hand, and could not properly turn on objections which would arise in every case, and which would therefore, if successful, subvert the intention of Parliament.

The pre-condition for a declaration set out in S6(7) of the JSA was agreed by the parties to have been fulfilled, since the Secretary of State had not merely considered whether to make a claim for public interest immunity in relation to the material on which this application was based, but had in fact done so before making this application. The material advanced here was withheld in the control order proceedings pursuant to the Prevention of Terrorism Act 2005. A PII application was made in these proceedings in relation to this material, although that application was now in effect superseded by the application for a CMP.

In respect of the application for a declaration for closed material procedures, Irwin J went on make the declaration pursuant to S6(1) of the JSA 2013 that a closed material application could be made to the court.

Public Interest Immunity

The co-existence of the JSA 2013 and PII was, in Irwin J’s opinion, “uneasy”. In his view

the description of the processes cited above as being “antithetical” is just. Moreover, in restricting the ambit of the JSA to material affecting national security, excluding material where PII may be sought on other grounds, Parliament has created problematic anomalies. If, as in this case, material is sought to be excluded on the ground of potential damage to the international relations of the UK, then to the extent that such an application is successful, that material cannot be introduced into a CMP which has been permitted pursuant to the Act. So if a declaration is followed by permission for a CMP, material which would have been excluded under a PII application on the (usually) more serious and pressing ground of potential damage to national security will be seen and assessed by the court; material excluded on the ground of potential damage to international relations cannot be considered either in the open proceedings or within the CMP.

Another anomaly is the restricted potential response by the State to an unsuccessful application for PII, based on the international relations ground. Usually, if the State is unsuccessful, the relevant Secretary of State has the choice to abandon the case or the issue in question, and by that means avoid disclosure. Where there has been a declaration, meaning that sensitive material can be considered, it is hard to see that as a practical choice, unless the issues to which the PII-excluded material relates, are quite discrete from the case which will be addressed within the CMP.

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