Sarkandi & Ors, R (On the Application Of) v Secretary of State for Foreign And Commonwealth Affairs

Under section 6 of the Justice and Security Act 2013, a closed material procedure may be authorised where sensitive material would otherwise be disclosable and no satisfactory alternative serves the fair and effective administration of justice. In judicial review of a ministerial proposal to an EU institution, the relevant decision is the minister’s proposal, not the institution’s later listing decision. The court is not confined to material communicated to the institution. Material relied on to defend the minister’s decision may be disclosable, subject to public interest immunity. The first statutory condition does not require prediction of the outcome of a PII claim. A declaration is permissible where PII would withhold important material needed for a fair trial, subject to Article 6 safeguards.

The appellants sought judicial review of the Secretary of State’s decision to propose their listing under EU restrictive-measures legislation concerning Iran. They alleged irrationality, errors of fact and inadequate inquiry. The Secretary of State relied on sensitive material and applied for a declaration under section 6 of the Justice and Security Act 2013. Bean J made the declaration: [2014] EWHC 2359 (Admin).

The EU General Court subsequently annulled the listings, but those decisions did not determine the lawfulness of the Secretary of State’s earlier proposal. The appeal concerned whether sensitive material was potentially disclosable and whether a closed material procedure was necessary despite public interest immunity, gisting and other alternatives.

1. Appeal dismissed. Richards LJ gave the leading judgment, with Sullivan LJ and McFarlane LJ agreeing.
2. First condition. The judicial review challenged the Secretary of State’s decision to propose the appellants for listing, not the Council’s later decision to list them. Rationality therefore depended on whether the material considered by the Secretary of State provided a rational basis for making the proposal. The court was not confined to the information communicated to the Council. Sensitive material relied on to defend the decision was, subject to any PII claim, potentially disclosable. The duty also arose from the public authority’s obligation to give the court a full and accurate explanation of the decision under challenge. That duty was more extensive than the disclosure test discussed in Tweed v Parades Commission for Northern Ireland [2006] UKHL 53.
3. The reasoning in AN v Secretary of State for the Home Department [2010] EWCA Civ 869 was inapplicable. That case concerned a control order made by the Secretary of State himself. Here, a closed procedure could enable the court to examine the material underlying the proposal. The eventual extent of withholding could not be determined at the gateway stage.
4. Second condition. A declaration was permissible only if a closed procedure was necessary for the fair and effective administration of justice and no satisfactory alternative existed. The Justice and Security Act 2013 required its natural meaning to be applied, subject to any reading necessary for Article 6 compliance. A PII claim would withhold important detail essential to evaluating the substantive claim and might preclude a trial altogether. It was therefore an unsatisfactory alternative. The court was not required to determine in advance what material would later be withheld or summarised.
5. The safeguards in section 8 and CPR Part 82, including consideration of a summary and possible restrictions on reliance where no summary was provided, had to be applied consistently with Article 6. The statutory conditions were satisfied and the declaration was properly made.

1. Court of Appeal (Civil Division). Appeal dismissed. The court upheld the section 6 declaration.
2. High Court of Justice, Queen’s Bench Division, Administrative Court. Bean J made a declaration under section 6 of the Justice and Security Act 2013 permitting a closed material application: [2014] EWHC 2359 (Admin).