Mohammed v Ministry of Defence

The appointment of a special advocate to assist with public interest immunity claims is an exceptional measure. It is justified only where the interests of justice require it. Relevant considerations include the number and nature of the documents, whether the issues raise any novel point of principle, the importance of the material to the issues being tried, the extent to which the claimant can participate effectively, and whether other safeguards can address any information gap.

The claimant sought the appointment of a special advocate for a forthcoming hearing concerning the defendant’s claims to public interest immunity over documents relevant to preliminary issues in a damages action arising from his detention in Afghanistan. Some documents had been disclosed in earlier judicial review proceedings, and further documents were subject to proposed withholding or redaction. The claimant relied on the complexity of the procedural history and the proposed need for public-domain searches. The issue was whether the interests of justice required the exceptional appointment of a special advocate.

1. Application refused. The court declined to invite the Attorney General to appoint a special advocate.
2. The governing question was whether the interests of justice required such an appointment. The remedy was exceptional: R v H [2004] 2 AC 134 and R (AHK) v Home Secretary [2009] 1 WLR 2049.
3. The relevant circumstances did not make the case exceptional. The number of documents was relatively small. The principal grounds relied upon—operational security and protection of sources—were established heads of public interest immunity and raised no issue of principle. Some claims had already been considered and upheld. The documents were relevant only to aspects of the preliminary issues which were of limited compass and, on the court’s present view, far from central.
4. For documents previously disclosed in the Maya Evans proceedings, the claimant’s solicitors possessed unredacted copies. The proposed redactions would be identified before the hearing. The claimant could therefore participate effectively, including in a private part of the hearing, and could conduct a full public-domain search. The claimant would not be materially disadvantaged by not being told the grounds for the claims, which were likely to be apparent from the nature of the material.
5. For other documents, the court would expect assurances from the defendant’s solicitors that public-domain searches had been conducted, together with details of those searches. The court considered that deciding the PII claims should be relatively short and straightforward, and that no assistance from a special advocate was required.