Murungaru, R (on the application of) v Secretary of State for the Home Department

Where proportionality and Convention rights are engaged, fairness may require the appointment of a special advocate if significant material relied on by the decision-maker cannot be disclosed. The court must assess whether the undisclosed material requires effective adversarial submissions, rather than treating its existence as sufficient. The criminal-procedure principle that special counsel is a last resort does not automatically govern non-criminal proceedings. The appropriate safeguard depends on the proceedings, the issues to be decided and the extent to which the court must evaluate secret material. Any derogation from full disclosure must be the minimum necessary to protect the public interest.

The claimant, a former Kenyan Government minister, challenged his exclusion from the United Kingdom after the Secretary of State relied on certified national-security material. Keith J had held that the claimant’s contractual right to receive medical treatment in the United Kingdom constituted a possession under Article 1 of the First Protocol and engaged Article 6 of the Convention. Keith J also concluded that the court would need to inspect the material relied on by the Secretary of State when determining procedural fairness and proportionality.

The claimant did not seek disclosure of the material or a public-interest-immunity review. He sought the appointment of special counsel to represent his interests after the material had been inspected. The issue was whether that safeguard was required in order to provide a minimum level of fairness.

1. Application granted. The court invited the Attorney-General to appoint a special advocate. The claimant was awarded the costs of the application in the case.
2. Keith J’s determination that the court needed to inspect the Secretary of State’s material was binding in the proceedings and, in any event, was correct. The proportionality issue could not be resolved merely by establishing that the Secretary of State possessed information concerning the claimant. The court might need to assess whether the belief that the claimant had been involved in activities connected with corruption allegations was reasonable, and whether it was mistaken.
3. The ordinary rule, illustrated by In Re K (Infant) [1963] Ch 381 and [1965] AC 201, is that a party should see and challenge material placed before the judge. However, fairness is an evolving concept. As explained in R (Roberts) v Parole Board [2005] 2 AC 738, any necessary departure from full disclosure must be kept to the minimum necessary to protect the public interest.
4. The observations in R v H [2004] 2 AC 134, that special counsel is exceptional and a course of last resort, arose in the criminal context. In a criminal trial the judge generally acts as a filter because the jury is the fact-finder. That reasoning did not determine the present case, where the judge had to decide proportionality directly and might have to evaluate the secret material.
5. Once proportionality was engaged and depended to a significant extent on material the claimant could not see, fairness required representation by an advocate able to make effective submissions. The court therefore ordered that a special advocate be appointed, subject to directions concerning the information to be provided and possible security for costs.