CF v The Ministry of Defence & Ors

In civil proceedings involving a closed material procedure but not directly affecting liberty, Article 6 does not impose an irreducible minimum disclosure or require a gist of the defendant’s case in every instance. The court must balance trial fairness against national security. Any restriction on participation requires careful and thorough justification, and the court must make every feasible effort to mitigate its effects. A properly conducted trial on the merits is preferable to an unjust victory or defeat caused by the case being untriable. Special Advocates, closed cross-examination, detailed evidence from the claimant, questions, and careful inferences may provide adequate safeguards where further disclosure would seriously damage national security.

The claimant brought civil claims alleging British involvement in unlawful detention, ill-treatment and torture, seeking damages and declaratory relief against the Ministry of Defence, the Foreign and Commonwealth Office, the Home Office and the Attorney General. A declaration under section 6 of the Justice and Security Act 2013 permitted a closed material procedure.

The claimant sought further disclosure, a summary or a gist of the defendants’ case, relying principally on Article 6 and authorities concerning control orders, employment security vetting and national security proceedings. The central issue was whether Article 6 required additional disclosure despite the risk to national security.

1. Applicable approach. In a civil claim not directly affecting the claimant’s liberty, Article 6 does not require an irreducible minimum of disclosure or a necessary summary or gist of the defendant’s case. The court must balance maximising trial fairness against protecting national security. Any compromise of fairness must be thoroughly justified, and every possible effort must be made to mitigate the effects of closed material procedures and limited disclosure.
2. The court adopted the approach in Tariq v Home Office [2011] UKSC 35. The position is fact-sensitive. The safeguards required in a case concerning liberty do not automatically apply to a claim for compensation, even where the allegations are grave and engage a legitimate public interest.
3. The court rejected the submission that Carnduff v Rock [2011] 1 WLR 1786 was confined to public interest immunity. The risk of an unjust victory because a case is untriable should be avoided whether the difficulty arises from public interest immunity or a closed material procedure. A trial on the merits is preferable to an unmerited loss by either the State or the citizen.
4. On the evidence, the relevant closed material was interlocking and cross-referential. No meaningful part could be disclosed without leading to the remainder and causing severe damage to national security. The claimant’s evidence nevertheless provided a detailed account of events. Any need for further detail could be addressed through questions and by drawing appropriate inferences from omissions.
5. Open cross-examination would require careful limitation, but cross-examination in closed session would be unrestricted. The Special Advocates and the court’s assessment of proper inferences supplied adequate safeguards. The application for further disclosure, whether by documents, summary or gist, was rejected.

First-instance decision. The judgment refers to earlier judgments in the same proceedings, including [2013] EWHC 3402 (QB) and [2013] EWHC 3402 (QB) (CL).