Al-Rawi & others v The Security Service & others

JurisdictionEngland & Wales
JudgeLORD DYSON,LORD HOPE,LORD BROWN,LORD KERR,LORD MANCE,Lady Hale,LORD CLARKE,LORD PHILLIPS,LORD RODGER
Judgment Date13 July 2011
Neutral Citation[2011] UKSC 34
CourtSupreme Court
Date13 July 2011
Al Rawi

and others

(Respondents)
and
The Security Service

and others

(Appellants)

[2011] UKSC 34

before

Lord Phillips, President

Lord Hope, Deputy President

Lord Rodger

Lady Hale

Lord Brown

Lord Mance

Lord Kerr

Lord Clarke

Lord Dyson

THE SUPREME COURT

Trinity Term

On appeal from: [2010] EWCA Civ 482

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

1

The issue that arises on this appeal is whether the court has the power to order a "closed material procedure" as described in the preliminary issue that was tried by Silber J for the whole or part of the trial of a civil claim for damages and, if so, in what circumstances it is appropriate to exercise the power. The preliminary issue was in these terms:

"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."

2

Silber J answered the question raised by the preliminary issue in the affirmative: [2009] EWHC 2959 (QB). The Court of Appeal (Lord Neuberger of Abbotsbury MR, Maurice Kay and Sullivan LJJ) [2010] EWCA Civ 482, [2010] 3 WLR 1069 allowed the claimants' appeal and held that the court has no such power in an ordinary civil claim for damages. The defendants appeal with the permission of the Supreme Court.

The proceedings

3

The preliminary issue was raised in proceedings in which the claimants alleged that the Security Service and other organs of the state (the appellants) had been complicit in the detention and ill-treatment of them by foreign authorities at various locations including Guantanamo Bay. The pleaded causes of action included false imprisonment, trespass to the person, conspiracy to injure, torture and breach of the Human Rights Act 1998. A more detailed exposition of the factual background is set out in paras 5-6 of the judgment of Lord Neuberger.

4

The appellants filed an open defence in which they admitted that the claimants had been transferred and detained, but they put in issue the alleged mistreatment and denied any liability for the claimants' detention or alleged mistreatment. At a case management hearing, the appellants said that they were in possession of material which they wished the court to consider, but which they would be obliged in the public interest to withhold from disclosure. This material was contained in a closed defence. The course contended for by the appellants would require parallel open and closed proceedings and parallel open and closed judgments. Special advocates would represent the interests of the claimants in the closed hearings.

5

The claimants objected to this course. They argued that a conventional public interest immunity ("PII") exercise should be conducted ex parte by a judge in relation to the "closed" material. Lord Clarke describes the PII procedure in detail at para 145 below. In response, the appellants emphasised the difficulties that would be caused by the vast amount of sensitive material in their possession and the enormous scale of any PII exercise. The evidence filed on behalf of the appellants suggested that there might be as many as 250,000 potentially relevant documents, and that PII might have to be considered in respect of as many as 140,000 of them. It might take three years to complete the exercise of deciding in respect of which documents PII could properly be claimed.

6

Against this background, directions were sought from the court for the determination of four preliminary issues. On 24 September 2009, Burnett J ordered that the first of these issues should be tried first. This was the issue which, in its final form, is the subject of the present appeal.

7

After the decision of the Court of Appeal, but before the appeal came on for hearing before the Supreme Court, the claims were settled on confidential terms. A question therefore arose as to whether the court should permit the appeal to continue. It raises an important point of principle which was the subject of a full and carefully reasoned decision of the Court of Appeal. In my view, it was right to entertain the appeal. Having had the benefit of full legal argument over a period of two days, I am in no doubt that the Supreme Court should decide the issue raised by the preliminary issue so far as it is able to do so.

The positions of the parties in outline

8

The appellants submit that the right to a fair trial is absolute, but the means of satisfying that right vary according to the circumstances of the case. The procedures of the court are the means of achieving real justice between the parties. As a general rule, real justice and a fair trial can only be achieved by open hearings, open disclosure, each side confronting the other's witnesses and open judgments. But in certain circumstances, a closed procedure may be necessary in order to achieve real justice and a fair trial. Such procedures are adopted in certain classes of case (for example, cases involving children and confidential information). There is no reason in principle why in the exercise of its inherent jurisdiction the court should not be able to order such a procedure in other classes of case, such as cases where a defendant cannot deploy its defence fully (or sometimes not at all) if it is required to follow an open procedure. The appellants' primary case is that a court has the power to substitute, at least in exceptional cases, a closed material procedure for a conventional PII exercise.

9

The respondent says that open procedures are fundamental to our system of justice. His case is that a closed material procedure would be such a fundamental change to the way in which ordinary civil litigation (including judicial review) is conducted that it should not be introduced by the courts. Any such change can only be made by Parliament.

The essential features of a common law trial

10

There are certain features of a common law trial which are fundamental to our system of justice (both criminal and civil). First, subject to certain established and limited exceptions, trials should be conducted and judgments given in public. The importance of the open justice principle has been emphasised many times: see, for example, R v Sussex Justices, Ex p McCarthy [1924] 1 KB 256, at p 259, per Lord Hewart CJ, Attorney General v Leveller Magazine Ltd [1979] AC 440, at pp 449H-450B, per Lord Diplock, and recently R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) (Guardian News and Media Ltd intervening) [2011] QB 218, paras 38-39, per Lord Judge CJ.

11

The open justice principle is not a mere procedural rule. It is a fundamental common law principle. In Scott v Scott [1913] AC 417, Lord Shaw of Dunfermline (p 476) criticised the decision of the lower court to hold a hearing in camera as "constituting a violation of that publicity in the administration of justice which is one of the surest guarantees of our liberties, and an attack upon the very foundations of public and private security." Lord Haldane LC (p 438) said that any judge faced with a demand to depart from the general rule must treat the question "as one of principle, and as turning, not on convenience, but on necessity".

12

Secondly, trials are conducted on the basis of the principle of natural justice. There are a number of strands to this. A party has a right to know the case against him and the evidence on which it is based. He is entitled to have the opportunity to respond to any such evidence and to any submissions made by the other side. The other side may not advance contentions or adduce evidence of which he is kept in ignorance. The Privy Council said in the civil case of Kanda v Government of Malaya [1962] AC 322, 337:

"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."

13

Another aspect of the principle of natural justice is that the parties should be given an opportunity to call their own witnesses and to cross-examine the opposing witnesses. As was said by the High Court of Australia in Lee v The Queen (1998) 195 CLR 594, at para 32: "Confrontation and the opportunity for cross-examination is of central significance to the common law adversarial...

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