|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> K, A & B, R (on the application of) v Secretary of State for Defence Secretary of State for the Foreign and Commonwealth Affairs  EWHC 1261 (Admin) (27 May 2016)
Cite as:  EWHC 1261 (Admin)
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE OUSELEY
| The Queen (on the application of K, A and B)
|- and -
|Secretary of State for Defence
Secretary of State for the Foreign and Commonwealth Affairs
Mr K. Beal QC and Mr Z. Ahmad, (instructed by the Special Advocates' Support Office) as Special Advocates
Mr J. Glasson QC and Mr B. Watson (instructed by the Government Legal Department) for the Defendants
Hearing dates: 17, 18 November 2015, and 29 February 2016
Crown Copyright ©
Lord Justice Simon :
The history of the litigation
The relevant provisions of the JSA 2013
"6. Declaration permitting closed material applications in proceedings -
(1) The court seised of relevant civil proceedings may make a declaration that the proceedings are proceedings in which a closed material application may be made to the Court.
(2) The court may make such a declaration –
(a) on the application of -
(i) the Secretary of State (whether or not the Secretary of State is a party to the proceedings), or
(ii) any party to the proceedings, or
(b) of its own motion.
(3) The court may make such a declaration if it considers that the following two conditions are met.
(4) The first condition is that -
(a) a party to the proceedings would be required to disclose sensitive material in the course of the proceedings to another person (whether or not another party to the proceedings), or
(b) a party to the proceedings would be required to make such a disclosure were it not for one or more of the following –
(i) the possibility of a claim for public interest immunity in relation to the material …
(5) The second condition is that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration.
(6) The two conditions are met if the court considers that they are met in relation to any material that would be required to be disclosed in the course of proceedings …
(7) The court must not consider an application by the Secretary of State under subsection (2)(a) unless it is satisfied that the Secretary of State has, before making the application, considered whether to make, or advise another person to make, a claim for public interest immunity in relation to the material on which the application is based.
7. Review and revocation of declaration under section 6 -
(1) This section applies where a court seized of relevant civil proceedings has made a declaration under section 6.
(2) The court must keep the declaration under review, and may at any time revoke it if it considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings.
(3) The court must undertake a formal review of the declaration once the pre-trial disclosure exercise in the proceedings has been completed, and must revoke it if it considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings."
S8 (3): "The court must be authorised –
(a) If it considers that the material or anything that is required to be summarised might adversely affect the relevant person's case or support the case of another party to the proceedings, to direct that the relevant person –
(i) is not to rely on such points in that person's case, or
(ii) is to make such concessions or take such other steps as the court may specify, or
(b) in any other case, to ensure that the relevant person does not rely on the material or (as the case may be) on that which is required to be summarised."
"Nothing in sections 6 to 13 and this section (or in any provision made by virtue of them) –
(c) is to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the Human Rights Convention."
The issue that arises at this stage
"Provided this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the sources of the evidence forming the basis of the allegations. Where, however, the open material consists purely of general assertions and the case against the controlee is based solely or to a decisive degree on closed materials the requirement of a fair trial will not be satisfied, however cogent the case based on the closed materials may be."
See also Lord Hope at , and :
"where detail matters, as it often will, detail must be met with detail ..."
The policy based arguments
The ECHR ground
"In Al-Skeini v. United Kingdom (2011) 53 EHRR 18 the Grand Chamber, while reiterating (at ) that jurisdiction under Article 1 was primarily territorial and that extraterritorial acts gave rise to jurisdiction only in exceptional circumstances, endorsed the extensions of territorial scope indicated in the earlier cases. In particular, it confirmed (at ) that the ECHR applied where:
"as a consequence of lawful or unlawful military action, a contracting state exercises effective control of an area outside that national territory".
"… it follows from Al-Skeini that whenever and wherever a State which is a contracting party to the ECHR purports to exercise legal authority or uses physical force abroad, it must do so in a way that does not violate ECHR rights."