McGartland & Anor v The Attorney General

Under section 6 of the Justice and Security Act 2013, a closed material procedure may be authorised where the defendant would otherwise be required to disclose sensitive material and its use is in the interests of the fair and effective administration of justice. The court may consider the application before requiring a detailed open defence where closed material is relevant to that preliminary issue. Issues concerning the fairness of determining the claim should generally be addressed within the section 6 process, after both parties’ cases have been deployed, with the declaration kept under review and the procedural techniques available under section 8.

The claimants brought proceedings concerning alleged promises of protection, financial support and other assistance following the first claimant’s work as an alleged agent in Northern Ireland and subsequent risks to his safety. The defendant neither admitted nor denied the allegations and applied under section 6 of the Justice and Security Act 2013 for a declaration permitting a closed material application.

The claimants sought an order requiring the defendant to plead openly and in detail under CPR 16.5 before the section 6 application was determined. They argued that sensitive material could be protected through private hearings under CPR 39.2(3)(b). The issues were whether the statutory conditions for a declaration were met and whether the open-pleading application should be determined first.

1. Declaration under section 6. The court was satisfied that the defendant would be required to disclose sensitive material concerning methods of protecting persons at risk and the training of handlers. Disclosure of that material would damage national security. The first statutory condition under section 6(4)(a) or (b)(i) was therefore met.
2. The court was also satisfied under section 6(5) that a declaration was in the interests of the fair and effective administration of justice. The material related to significant parts of the claim concerning alleged mishandling of the claimants’ protection. Those issues could not effectively and justly be determined without it.
3. The claimants’ application for an open and detailed defence should not be determined first. Section 11(4) did not treat that application as section 6 proceedings for the purposes of sections 8 to 10. More importantly, the closed material was capable of affecting the decision on the open-pleading issue, and it would be unfair to determine that issue without considering it.
4. Private hearings, vetting of the claimants’ representatives or treating the first claimant as trustworthy would not provide an adequate solution. Vetting would be intrusive and lengthy, and could itself require consideration of sensitive material.
5. The difficult issues arising from the inability to confront witnesses directly should be addressed under the umbrella of the section 6 proceedings, after both sides’ cases had been fully deployed. The court therefore embarked on the statutory process immediately, subject to the continuing duty under section 7(2) to keep the declaration under review and to use the techniques available under section 8(3).
6. The proposed order for further conduct was circulated for written submissions before final directions were made.