R K and Others v The Secretary of State for Defence and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lord Justice Treacy,Lord Justice Underhill,THE RIGHT HONOURABLE LORD JUSTICE UNDERHILL,THE RIGHT HONOURABLE LORD JUSTICE LONGMORE,THE RIGHT HONOURABLE LORD JUSTICE TREACY |
| Judgment Date | 23 November 2016 |
| Neutral Citation | [2016] EWCA Civ 1149 |
| Docket Number | Case No: T3/2016/2960 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 November 2016 |
[2016] EWCA Civ 1149
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
THE RIGHT HONOURABLE LORD JUSTICE SIMON & THE HONOURABLE
MR JUSTICE OUSELEY
Royal Courts of Justice
Strand, London, WC2A 2LL
The Right Honourable Lord Justice Longmore
The Right Honourable Lord Justice Treacy
and
The Right Honourable Lord Justice Underhill
Case No: T3/2016/2960
Mr Tim Owen QC & Ms Samantha Knights (instructed by Deighton Pierce Glynn) for the Appellants
Mr Ben Watson (instructed by Government Legal Department) for the Respondents
Mr Kieron Beal QC & Mr Zubair Ahmad as Special Advocates (instructed by The Special Advocates' Support Office)
Hearing dates: 22 nd & 23 rd September 2016
FINAL OPEN JUDGMENT
Introduction
The proceedings underlying this procedural appeal have been brought by three Afghan claimants who assert that they were covert human intelligence sources ("CHIS") working for and providing intelligence to the defendants between 2008–2013. They assert further that the defendants had (or ought to have had) policies in relation to their protection, relocation and compensation once the International Security Assistance Force ("ISAF") withdrew from Afghanistan and that they fall (or ought to fall) within such policies and the defendants should therefore relocate them in Afghanistan and pay the costs of such relocation together with (unspecified) compensation for the disruption to their lives and risks to their safety. In support of their claims they have filed witness statements detailing their accounts (which the defendants neither confirm nor deny) of the history of their association with personnel of the Ministry of Defence (" MOD"), the threats (and thus the danger) to which they and their families have been exposed since British forces left and the continued risks and dangers to which they and their families are subject.
They also claim that their relationship with the defendants comes within the protections afforded by the European Convention of Human Rights ("the ECHR"), that the defendants have been in breach of Article 2 (right to life), Article 3 (prohibition of inhuman or degrading treatment) and Article 8 (right to respect for private and family life) and that they are entitled to compensation for such breaches. I shall refer to the claims so far mentioned as "the public law claims".
They have also made private law claims for breaches of an asserted common law duty of protection and breaches of asserted contracts of employment; there are also claims in negligence and claims for loss arising from representations said to have been made by the defendants in relation to the claimants' support and relocation. These common law claims have been stayed to await resolution of the public law claims and I will say little more about them.
The defendants say that the claims should be dismissed by reason (inter alia) of the difficulties arising from their "Neither Confirm nor Deny" policy in relation to intelligence sources but have obtained from the court a declaration pursuant to section 6 of the Justice and Security Act 2013 ("the 2013 Act") that sensitive material can be withheld from the claimants. Special advocates have been appointed to whom that material has been disclosed. The MOD has moreover carried out assessments of the three claimants. Those were presented to the court in closed witness statements (namely statements only available to the special advocates). Further witness statements were made by the claimants in response to a series of questions which led to further assessments from the defendants (again) in closed witness statements.
The Administrative Court fixed 17 th and 18 th November 2015 for what was hoped would be the substantive hearing of the public law claims but both the claimants and the special advocates wanted further disclosure. When the matter came before the Divisional Court on 17 th November it was said that, pursuant to section 14 of the 2013 Act, if Article 6 of the Convention applied, there would have to be further disclosure. That was therefore debated during that hearing at the end of which the defendants informed the claimants that they took the view that the claimants were not:-
"telling the truth in relation to material and core points of their claim [and] are apparently deliberately putting forward false evidence in order to secure the financial advantage and/or internal relocation sought."
That is currently the sum total of the defendants' open case although the detail behind it has been disclosed to the special advocates.
The complex procedural route to this destination is set out in detail in the open judgment of the Divisional Court to which reference may be made. That court ordered that there be no further disclosure because:-
i) the public law claims (which were the only claims, at this stage, before the court) did not constitute a claim to the "determination of civil rights and obligations" within Article 6 of the ECHR;
ii) they did not therefore fall within the ambit of the provision of the 2013 Act which required compliance with the obligations set out in Article 6 which might necessitate further orders of disclosure being made;
iii) there was no freestanding common law right to disclosure once the court had made a declaration under section 6 of the Act that sensitive material could be withheld from the claimants;
iv) the ECHR did not apply to the claims under Articles 2, 3 and 8 because they related to activities in Afghanistan outside the United Kingdom to which, by reason of Article 1(1) of the Convention, the ECHR did not apply; and
v) the fact that Article 6 would apply to claims made under Articles 2, 3 and 8 was therefore irrelevant.
Both Mr Tim Owen QC for the claimants and Mr Kieron Beal QC as the special advocate challenged the first 4 of those conclusions. They also submitted that there was insufficient material before the court to enable it to come to conclusion (iv) which they had, in any event, expected only to be determined at the substantive hearing.
The Legislative Background
In order to understand the ambit of these arguments it is necessary to set out the relevant parts of the 2013 Act.
Part 2 of the Act deals with disclosure of sensitive material. Section 6 enables a court seised of relevant civil proceedings to make a declaration that the proceedings are proceedings in which a closed material application may be made to the court and provides that the court may make such a declaration if (1) a party to the proceedings would be required to disclose sensitive material in the course of the proceedings to another person and (2) it is in the interests of the fair and effective administration of justice in the proceedings to make such a declaration. Section 7 deals with reviewing and revoking any declaration made under section 6 as follows:-
"(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."
The current position in these proceedings is that on 6 th July 2015 Mitting J made a declaration pursuant to section 6 and on 8 th September he made an order that all the material so far disclosed by the defendants could be withheld. No sensitive material has therefore been disclosed to the claimants. The time for formal review of the declaration made under section 6 has not yet arrived because pre-trial disclosure will not yet have been completed if this court reverses the decision of the Divisional Court.
Section 8 of the Act makes provision for the determination of proceedings under section 6 by requiring rules of court to be made:-
"(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...
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