CF v The Security Service & Ors

The court may declare that closed material applications may be made before disclosure and without a public interest immunity claim having been determined. The statutory conditions are assessed in the particular proceedings. General objections to closed material procedures cannot displace Parliament’s statutory scheme.

The court must decide whether the material is sensitive and whether a closed procedure is in the interests of the fair and effective administration of justice. Public interest immunity remains a distinct process. Where it is invoked on grounds such as damage to international relations, the Wiley balance must still be applied. Alternative devices, including confidentiality rings, will not necessarily provide an effective or safer method of trying claims involving national security material.

CF and Mohammed Ahmed Mohamed brought damages claims against government departments and agencies. They alleged that the defendants had procured, assisted or acquiesced in their detention, mistreatment and torture in Somaliland.

The defendants sought a declaration under Part 2 of the Justice and Security Act 2013 permitting a closed material application. Public interest immunity applications were also made in respect of material said to threaten international relations. The claimants argued that public interest immunity should first be determined and that a closed procedure could not be fair. The court had to decide whether the statutory conditions for a declaration were satisfied and how the declaration interacted with public interest immunity.

1. Declaration. The declaration under section 6(1) of the Justice and Security Act 2013 was made. The first statutory condition was satisfied because relevant material would otherwise require disclosure and was sensitive material, namely material whose disclosure would damage national security.
2. The court rejected the submission that disclosure or a completed public interest immunity process was a necessary precondition. Sections 6(6) and 6(7) showed that Parliament had not required a PII application to be made in every case or determined before a declaration. The court could therefore make a declaration before disclosure and without a PII claim having been determined.
3. The second condition required an assessment of the specific circumstances and whether a declaration served the fair and effective administration of justice. The relevant material was centrally relevant and, without it, the case might be untriable in the sense identified in Carnduff v Rock [2001] EWCA Civ 680. A confidentiality ring, restricted access or in-camera procedure would not provide an effective alternative. The claimants could not safely be admitted to the ring, their lawyers could not communicate freely with them, and there would be no special advocates.
4. The criticisms of closed procedures in Al Rawi v Security Service [2012] 1 AC 531 concerned the common law. The statutory scheme had been enacted precisely to authorise closed procedures in defined circumstances. In the absence of a challenge under Article 6, the court was required to apply the Act.
5. PII remained a separate process. Following R v Chief Constable of Westmorland Police, ex p Wiley [1995] 1 AC 274, the court considered relevance, likely serious damage to international relations and the balance between that damage and open justice. Material excluded on international-relations grounds could not be introduced into the CMP. The PII application succeeded, subject to the finalisation of gists and summaries and continuing review.