Ahmad Sarkandi Ghasem Nabipour Mohammad Fard Alireza Ghezelayagh Ahmad Tafazoly, R (On the Application Of) v Secretary of State for Foreign And Commonwealth Affairs

A closed material procedure may be authorised where the applicant shows an arguable defence supported prima facie by relevant sensitive material, and disclosure would otherwise be required. The court must also be satisfied that the procedure is necessary for the fair and effective administration of justice. A public interest immunity application is not a satisfactory alternative where it would exclude material essential to assessing the rationality of the decision under challenge. Gisting is insufficient where further particulars cannot safely be provided, and a confidentiality ring may be impracticable. The statutory requirement to consider public interest immunity requires a substantive evaluation of that alternative, not merely a literal compliance exercise.

The claimants challenged the lawfulness of the Foreign Secretary’s proposal that they be designated under European Union sanctions concerning Iran. The General Court had annulled the Council’s decisions designating them, but that did not determine whether the Foreign Secretary’s earlier proposal was lawful under English law.

The Foreign Secretary applied under section 6 of the Justice and Security Act 2013 for a declaration permitting a closed material procedure in the judicial review. The issue was whether the statutory conditions were met, particularly whether sensitive material was disclosable and whether a closed procedure was necessary despite possible public interest immunity, gisting or a confidentiality ring.

1. Declaration granted. The claim was one in which a closed material application might be made to the court.
2. The General Court’s decisions concerning the lawfulness of the Council’s sanctions did not determine the separate judicial review of the Foreign Secretary’s proposal. The former issue was governed by European Union law; the latter concerned the lawfulness and rationality of the Foreign Secretary’s decision under English law.
3. The first condition under section 6(4) of the Justice and Security Act 2013 was satisfied. The material was sensitive within section 6(11) and was disclosable on general principles, subject to any public interest immunity claim. The court referred to the high duty of public authorities to provide full and accurate explanations in R (Quark Fishing) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409.
4. At the interlocutory stage, the court did not need to decide whether the Secretary of State would ultimately defeat the judicial review. It was sufficient that he had an arguable defence and that the sensitive material appeared prima facie relevant and supportive of it.
5. The second condition under section 6(5) was also satisfied. A closed procedure departs from open justice and natural justice and is permissible only where necessary. Here, the detail of the material was essential to assessing the rationality of the decision. A public interest immunity process would exclude that material from consideration, and no useful further gist could safely be given. A confidentiality ring was impracticable.
6. The Foreign Secretary’s consideration of public interest immunity under section 6(7) had to be substantive. A signed statement alone would not necessarily suffice, although the court was satisfied that the statutory requirement had been met in this case.

First-instance interlocutory decision in judicial review proceedings. The judgment records that the General Court of the European Union had previously annulled the Council’s designation decisions, but those decisions were not appealed to this court.