Kamoka and Others v The Security Service and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Irwin |
| Judgment Date | 15 October 2015 |
| Neutral Citation | [2015] EWHC 3307 (QB) |
| Docket Number | Case No: 1HQ/13/0699 |
| Court | Queen's Bench Division |
| Date | 15 October 2015 |
[2015] EWHC 3307 (QB)
Mr Justice Irwin
Case No: 1HQ/13/0699
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
LondonWC2A 2LL
Mr De La Mare QC and Mr Freedman QC appeared on behalf of the Claimants
Mr Phillips QC appeared on behalf of the Defendants
The procedural history to this matter is well known. There are hearings listed for November and December, with a tight preparatory timetable, which will be actually or potentially affected by the ruling I give today. It is for that reason that I have chosen to give an oral ruling rather than hand down judgment. If any party desires a transcript then, of course, they can request it and it can be obtained.
On 23 July this year I ordered that there should be in October a CMC hearing of two issues: (1) to review the section 6 declaration in accordance with section 7(2) and/or subsection (3) of the Justice and Security Act 2013; and (2) to hear legal argument on the principles to be applied at the section 8 disclosure stage.
The argument advanced by the claimants in the review of the section 6 declaration in effect consisted of submissions that the strike out was bound to fail. I have considered carefully the arguments advanced by Mr de la Mare QC on what we have called the "cul de sac" issue, namely the submission that the application was certain to fail. Mr Phillips QC for the defendants has resisted this submission in its substance but also argues that it is premature. Essentially, he says that it can only properly be addressed once the disclosure issues have been resolved.
Whilst many of the claimants' submissions turn on the open material, I can see that the resolution of disclosure issues may be needed before this issue can properly be resolved. It is not practicable to interpose a further hearing before the planned definitive hearing on the defendants' strike out in December, given the tight timetable to deal with disclosure in the section 8 review. I therefore have concluded that I should not rule on the submissions from the claimants in advance of the hearing in December. To do so might colour or alter the nature of that hearing. It would also not be "effective", to adopt the language of the Act. I therefore make no comment on the merits of the cul de sac submissions at this stage. I should record that Mr McCullough QC, the special advocate, argued in favour of an earlier ruling in the course of the closed hearing on Tuesday 13 October. For those reasons the declaration remains in place.
I turn to the second issue: what principles of disclosure should apply to the strike out proceedings in this case? I wish to emphasise that the declaration which has been made relates specifically to the strike out proceedings. At various stages both parties have emphasised that. I have indicated that, if and to the extent that the action survives the application, it would seem likely that an application for a declaration in the substantive action will be made. Many of the same criteria and factors would be taken into account. But it will be open to the claimants to argue against a declaration in surviving substantive proceedings. The existing declaration is for the strike out application and that forms part of the context for the approach to disclosure. It is relevant to note therefore that it is the defendants' application to bring the proceedings to a halt, and not the claimants' initiative to sue the defendants. That is one aspect of that context.
It is relevant to have regard to the provisions of section 8 of the Justice and Security Act. It reads as follows:
"Determination by court of applications in section 6 proceedings
(1) Rules of court relating to any relevant civil proceedings in relation to which there is a declaration under section 6 ('section 6 proceedings') must secure —
(a) that a relevant person has the opportunity to make an application to the court for permission not to disclose material otherwise than to —
(i) the court,
(ii) any person appointed as a special advocate, and
(iii) where the Secretary of State is not the relevant person but is a party to the proceedings, the Secretary of State,
(b) that such an application is always considered in the absence of every other party to the proceedings (and every other party's legal representative),
(c) that the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security,
(d) that, if permission is given by the court not to disclose material, it must consider requiring the relevant person to provide a summary of the material to every other party to the proceedings (and every other party's legal representative),
(e) that the court is required to ensure that such a summary does not contain material the disclosure of which would be damaging to the interests of national security.
(2) Rules of court relating to section 6 proceedings must secure that provision to the effect mentioned in subsection (3) applies in cases where a relevant person -
(a) does not receive the permission of the court to withhold material, but elects not to disclose it, or
(b) is required to provide another party to the proceedings with a summary of material that is withheld, but elects not to provide the summary.
(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."
Rules have been brought into being to facilitate the processes under Part 2 of the Act and placed in CPR Part 82. CPR 82.6 speaks of "private hearings", but is to be understood as a reference to the hearings in which closed material proceedings are carried through.
The rules also empower the court to give permission to withhold sensitive material: see CPR 82.14(6). There are then further provisions set out in CPR 82.14 (7) and (8). The relevant terms read as follows:
"(7) Where the court gives permission to the relevant person to withhold sensitive material, the court —
(a) must consider whether to direct the relevant person to serve a summary of that material on the specially represented party and the specially represented party's legal representative; but
(b) must ensure that any such summary does not contain material the disclosure of which would be damaging to the interests of national security.
(8) If the court is satisfied that —
(a) the relevant person does not intend to rely on sensitive material, and
(b) that material does not adversely affect the relevant person's case or support the case of another party to the proceedings,
the court may direct that the relevant person must not rely in the proceedings on that material, without the court first requiring the relevant person to serve a summary of that material on the specially represented party and the specially represented party's legal representative."
A single principle underpins the approach in the Act. The declaration, and all reviews of such a declaration, must be judged by whether or not the closed material procedure is and continues to be "in the interests of the fair and effective administration of justice": see section 6(5) and section 7(2). I touched on the meaning of this test in my judgment of July 2015 and will not repeat those remarks.
Mr Freedman QC for the claimants has advanced his arguments under two heads: the common law, and as an interpretation of the application of Article 6 of the European Convention of Human Rights. I will consider his arguments in that order.
Summarising the matter as sharply as I can, under common law the normal principles which apply mean full disclosure of relevant material. Where national security considerations mean that evidence or information cannot be disclosed, the operation of the common law led to the situation identified by the Court of Appeal in Carnduff v Rock [2001] 1 WLR 1786, namely that the dispute was rendered untriable. The Supreme Court found that the common law did not permit judicial instigation of closed material procedures. Only Parliament could institute such proceedings procedures: see the judgments in Al Rawi v The Security Service [2012] 1 AC 531. Parliament duly did provide such procedures. That was the origin of Part 2 of the Justice and Security Act 2013.
It follows from the foregoing that the test of fair and effective justice under the Act cannot import full common law principles of fairness, because the closed material procedure instigated by the Act is in conflict with the ordinary principles of fairness of common law. There must be a reconciliation of fairness principles under common law with the provisions of the statute. Fairness must mean "as fair as possible consistent with the provisions of the Act as laid down by Parliament". This is a familiar problem, not a new problem, confronting the common law. I shall return to that below.
I note the remarks of Richards LJ bearing on this topic in R (Sarkandi and others) v Secretary of State for Foreign Affairs [2015] EWCA Civ 687. The Court of Appeal was there considering the Justice and Security Act 2013 and Article 6. We will come shortly to Article 6.
In paragraph 58 of the judgment Richards LJ, with whose judgment the others agreed, said this:
"It [closed material procedure]...
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