Al Rawi and others v Security Service and others; [2009] EWHC 2959 (QB); [2009] WLR (D) 335

EVIDENCE — Disclosure — Closed material procedure — Special advocates — Civil claim — Claimants detained by foreign states at various locations — Claimants seeking damages for alleged ill-treatment by foreign authorities — Whether proper and lawful for court to order closed material procedure in civil claim for damages — Crown Proceedings Act 1947 — Human Rights Act 1998, Sch 1, Pt I, art 6

Al Rawi and others v Security Service and others

[2009] EWHC 2959 (QB); [2009] WLR (D) 335

QBD: Silber J: 18 Nov 2009

It could be lawful and proper for a court to order that a closed material procedure (avoiding disclosure of material contrary to the public interest otherwise than to special advocates) be adopted in a civil claim for damages.

Silber J, sitting in the Queen’s Bench Division, so stated when answering in the affirmative, the preliminary issue ordered on 24 September 2009 (and amended during the hearing) for the court’s determination, as to whether it could be proper and lawful for a court to order that a closed material procedure be adopted in a civil claim for damages brought by the former detainees Bisher Al Rawi, Jamil El Banna, Richard Belmar, Omar Deghayes, Moazzam Begg, Binyam Mohamed and Martin Mubanga against the Security Service, the Secret Intelligence Service, the Attorney General, the Foreign and Commonwealth Office and the Home Office, with Justice and Liberty intervening.

SILBER J said that the present claim, in which the issue arose, had been brought against organs of the state by seven former detainees who had been held by foreign states at various locations including the United States’ detention facility at Guantanamo Bay. They alleged that the defendants had caused or contributed to their detention and their alleged ill-treatment by foreign authorities. His Lordship stressed that a closed material procedure did not mean the claimants would not see any of the material, because the special advocate would be required to consider whether any of the closed documents should not be withheld from open disclosure to the claimants in the light of their rights under the Convention for the Protection of Human Rights and Fundamental Freedoms and at common law, and then to make submissions. If a closed material procedure was adopted in a private law claim, it would mean that the court would have to consider how to modify the procedure to ensure that rights under article 6 of the Convention, as scheduled to the Human Rights Act 1998, were respected. It was unfortunate that the preliminary issue did not include consideration of whether the closed material procedure should be used in the present case or the precise workings of the anticipated closed material procedure. There were several categories of case to which special advocates could be appointed and the justification for their use was expressed in very wide terms, but the case had to be exceptional and special advocates only appointed as a last resort to ensure fairness. The use of the closed material procedure in civil claims for damages was not precluded by any authority, any rule relating to public interest immunity, any provisions in the Civil Procedure Rules or in the Crown Proceedings Act 1947, or any matter which had been raised in the written or oral submissions of the claimants or of the interveners. Consideration would now have to be given to the question of whether that procedure should be adopted and how it should be dealt with.

Appearances: Timothy Otty QC, Richard Hermer QC and Tom Hickman (instructed byBirnberg, Peirce and Partners) for Bisher Al Rawi, Jamil El Banna and Omar Deghayes; Michael Fordham QC and Naina Patel (instructed by Birnberg, Peirce and Partners) for Richard Belmar and Moazzam Begg, (instructed byLeigh Day and Co) for the Binyam Mohamed and (instructed by Christian Khan) for Martin Mubanga; Jonathan Crow QC, Karen Steyn, Daniel Beard and Andrew O’Connor (instructed by the Treasury Solicitor) for the Security Service, the Secret Intelligence Service, the Attorney General, the Foreign and Commonwealth Office and the Home Office; Nigel Pleming QC, Eric Metcalfe and Corinna Ferguson made written submissions for the interveners, Justice and Liberty.

Reported by: Georgina Orde, barrister