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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Al Rawi & Ors v Security Service & Ors [2010] EWCA Civ 482 (04 May 2010) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2010/482.html Cite as: [2010] 4 All ER 559, [2010] 3 WLR 1069, [2010] CP Rep 37, [2010] NPC 51, (2010) 107(20) LSG 19, [2010] EWCA Civ 482, [2010] UKHRR 728 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION)
Mr Justice Silber
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE MAURICE KAY
and
LORD JUSTICE SULLIVAN
____________________
(1) Bisher Al Rawi (2) Jamil El Banna (3) Richard Belmar (4) Omar Deghayes (5) Binyam Mohamed (6) Martin Mubanga |
Appellants |
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- and - |
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(1) The Security Service (2) The Secret Intelligence Service (3) The Attorney General (4) The Foreign & Commonwealth Office (5) The Home Office |
Respondent |
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Leigh Day & Co for the 5th Appellant
Michael Fordham QC and Naina Patel (instructed by Christian Khan Solicitors) for the 6th Appellant
Jonathan Crow QC, Rory Phillips QC, Daniel Beard and Karen Steyn (instructed by The Treasury Solicitor) for the Respondents
John Howell QCand Jessica Boyd on behalf of the Intervenors Liberty and Justice
Guy Vassall-Adams on behalf of the Media Intervenors
Hearing dates : 8 & 9 March 2010
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Crown Copyright ©
Lord Neuberger MR:
This is the judgment of the court, to which all members have contributed.
The issue to be resolved
"A procedure in which:-
(a) a party is permitted
(i) to comply with his obligations for disclosure of documents, and (ii) to 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."
The factual background
Summary of conclusion
Principles which are involved in this case
Public interest immunity
The closed material procedure
The objection to the closed material procedure in principle
The effect of the Civil Procedure Rules
Practical considerations
- disclosure of certain material would result in a real risk of harm to an important public interest;
- the only alternative to excluding the material altogether would be to consider it in a closed material procedure;
- adopting a closed material procedure would better enable the court to deal justly with the case in accordance with the overriding objective, than would excluding the material.
The authorities relied on by the Judge
Concluding remarks