Fawwaz v Secretary of State for the Home Department

For the purposes of section 6 of the Justice and Security Act 2013, whether proceedings are a criminal cause or matter depends on the statutory context and the function the court must perform. A judicial review concerning the lawfulness of a ministerial decision is civil in character where the court’s function is distinct from any criminal proceedings connected with the dispute. The existence of criminal proceedings in another jurisdiction does not, without more, exclude the judicial review from section 6. A declaration may be made where the statutory conditions concerning disclosure of sensitive material and the fair and effective administration of justice are satisfied.

The claimant challenged the defendant’s refusal, on national security grounds, to comply with requests made to her. The court had previously made a declaration under section 6 of the Justice and Security Act 2013, permitting a closed material application, and gave these written reasons for that decision.

The issue was whether the court was seized of relevant civil proceedings, or whether the judicial review was excluded as proceedings in a criminal cause or matter because of its connection with criminal proceedings in another jurisdiction. The parties accepted that the statutory conditions concerning disclosure of sensitive material, fair and effective administration of justice, and prior consideration of public interest immunity were met.

1. The declaration under section 6 of the Justice and Security Act 2013 was properly made. The defendant would otherwise have been required to disclose sensitive material, and it was in the interests of the fair and effective administration of justice to make the declaration. The requirement in section 6(7) had also been satisfied.

2. The court was seized of relevant civil proceedings. Section 6(11) defines such proceedings as proceedings before the High Court, among other courts, other than proceedings in a criminal cause or matter.

3. The phrase criminal cause or matter does not necessarily bear one meaning in every statutory context. Its meaning must be assessed in the context of section 6 and the policy of the 2013 Act. The court applied the approach in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2013] QB 618.

4. The appropriate inquiry is to identify the core function performed by the court in the proceedings. Here, the court’s function was to determine whether the defendant had lawfully exercised her discretion when refusing requests on national security grounds. That function was a step removed from proceedings properly characterised as a criminal cause or matter.

5. It would be an unduly restrictive interpretation of section 6 to exclude judicial review proceedings merely because they were connected with criminal proceedings in another jurisdiction. All the statutory criteria were therefore met, and the claimant was right not to oppose the declaration.