McGartland & Anor v Secretary of State for the Home Department

A declaration under section 6 of the Justice and Security Act 2013 opens the possibility of closed material applications. It does not finally determine that material may be withheld or that the trial will be closed. The Act should receive its natural meaning, subject to any reading down required by article 6. The statutory conditions may be assessed by reference to any material required to be disclosed. The court need not first resolve a related neither-confirm-nor-deny issue or require a full open defence. A declaration may be made where sensitive operational material is needed to determine an important part of the claim, leaving detailed disclosure arrangements to the subsequent process and statutory review.

The claimants appealed from a decision of Mitting J in the Queen’s Bench Division, reported at [2014] EWHC 2248 (QB). The first claimant alleged that he had been a Security Service agent and that arrangements for his protection and support had been mishandled. His partner claimed consequential psychiatric injury.

The Secretary of State relied on a neither-confirm-nor-deny policy and sought a declaration under section 6 of the Justice and Security Act 2013. The claimants sought an order under CPR rule 3.1(2)(m) requiring a full open defence. Mitting J made the section 6 declaration, dismissed that application, and directed the filing of a detailed closed defence. The central issue was whether the neither-confirm-nor-deny question had to be determined before the section 6 application.

1. Appeal dismissed. The declaration was a case-management decision properly open to Mitting J, and there was no proper basis for interference.
2. A closed material procedure is an exceptional departure from open and natural justice. However, Parliament had authorised it in defined circumstances. Following the legal context described in Bank Mellat v Her Majesty’s Treasury (No.2) [2013] UKSC 38, [2014] AC 700, the Justice and Security Act 2013 should be given its natural meaning, subject to any reading down required by article 6.
3. The Court of Appeal disagreed with Mitting J’s view that there was no statutory power to consider closed material when determining the claimants’ application for a full open defence. That application was sufficiently related to the section 6 application to fall within section 11(4)(a). The error was of limited significance because the judge’s pragmatic reasons independently justified his conclusion.
4. Under section 6(6), the two statutory conditions may be satisfied in relation to any material required to be disclosed. The court was entitled to find that the first condition was met, more appropriately under section 6(4)(b)(i), because the Secretary of State would otherwise have been required to disclose sensitive material concerning operational methodology. It was also entitled to find under section 6(5) that a declaration was in the interests of the fair and effective administration of justice. The court was not required first to decide the neither-confirm-nor-deny issue or to await a full defence.
5. The declaration opened the gateway to closed material applications but did not determine the final disclosure arrangements. Subsequent applications under section 8, possible summaries, private hearings, confidentiality arrangements, and review under section 7 remained available. The court had to maintain compliance with article 6 and could revoke the declaration if it ceased to serve the interests of fair and effective justice.
6. The official material confirmed the claimant’s role as a police informer but did not officially confirm the pleaded status of Security Service agent. Self-disclosure did not automatically answer the neither-confirm-nor-deny issue, particularly where operational methodology remained sensitive. That issue was left to be considered within the section 6 process.

1. Court of Appeal (Civil Division) — Appeal dismissed. Richards LJ gave the judgment, with Lewison LJ and McCombe LJ agreeing.
2. High Court of Justice, Queen’s Bench Division — Mitting J made a declaration under section 6 of the Justice and Security Act 2013, dismissed the application for a full open defence, and gave further directions: [2014] EWHC 2248 (QB).