![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
United Kingdom Supreme Court |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Al Rawi & Ors v The Security Service & Ors [2011] UKSC 34 (13 July 2011) URL: https://www.bailii.org/uk/cases/UKSC//2011/34.html |
[New search] [View without highlighting] [Printable PDF version] [Help]
Trinity Term
[2011] UKSC 34
On appeal from: [2010] EWCA Civ 482
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 Jonathan Crow QC Rory Phillips QC Karen Steyn Daniel Beard Peter Skelton (Instructed by Treasury Solicitors) |
Respondent (Omar Deghayes) Dinah Rose QC Richard Hermer QC Charlotte Kilroy (Instructed by Birnberg Peirce and Partners) |
|
Interveners (JUSTICE and Liberty) John Howell QC Naina Patel (Instructed by Herbert Smith LLP) |
Intervener Lord Lester QC Guy Vassall-Adams (Instructed by Guardian News & Media Legal Department) |
LORD DYSON
Introduction
"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."
The proceedings
The positions of the parties in outline
The essential features of a common law trial
"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."
"…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."
The inherent power of the court to regulate its own procedure
"….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. "
Discussion
Is there a common law power to require a closed material procedure?
"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 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.
"How that conflict is to be resolved is a matter for Parliament and for government, subject to the law laid down by Parliament".
Previous authority
The Civil Procedure Rules
"Ordinary civil claims"
"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.
Conclusion
LORD HOPE
LORD BROWN
"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."
LORD KERR
LORD MANCE, with whom Lady Hale agrees
"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."
"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.
LORD CLARKE
Introduction
"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
(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".
The parties' cases in summary
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.
Defects in the order sought for the use of a "closed material procedure"
The factual and procedural background
The common law
PII – the principles
"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.
"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 the smallest probability of injury to the public service must always outweigh the gravest frustration of the administration of justice."
"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.
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.
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] 1 AC 440 per Lord Hoffmann at para 51.
"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
PII – special advocates
Should the PII exercise be abandoned?
Procedure after the balance is struck
A possible solution
"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 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."
"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 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."
"(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?"
Conclusion
LORD PHILLIPS
"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."
"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 cases, albeit only in exceptional circumstances, but that is an issue which should be considered as and when it arises."
LORD RODGER