Fawwaz v Secretary of State for the Home Department

Where material is sensitive because its disclosure would damage national security, the statutory scheme requires the court to give permission for it to be withheld. The court must still consider whether a safe summary can be provided. The wider question whether sensitive material may ever be disclosed within a confidentiality ring was left open. Relevant risks include inadvertent disclosure, uncertainty about the source of a leak, the suitability of proposed recipients, practical difficulties with a lawyer-only ring, and the difficulty of controlling material disclosed to a claimant outside the jurisdiction.

The claimant challenged the withholding of sensitive material in proceedings in which the court had made a declaration under section 6 of the Justice and Security Act 2013. The Secretary of State applied for permission to withhold the material, while special advocates proposed disclosure within a confidentiality ring.

The claimant was held in a prison in the United States. The central issues were whether the statutory scheme permitted disclosure of sensitive material within a confidentiality ring and, if so, whether disclosure could safely be ordered on the facts.

1. Permission to withhold material. The material was sensitive because disclosure would damage national security. Under section 8 of the Justice and Security Act 2013 and CPR rules 82.13 and 82.14(10), permission to withhold it had to be given. The court also considered whether a safe summary could be provided.
2. Confidentiality ring point left open. The court declined to decide definitively whether sensitive material could ever be disclosed within a confidentiality ring. That issue was better determined in a case where disclosure within the ring would not itself damage national security.
3. Risks relevant to disclosure. The practical concerns identified in AHK and Others v Secretary of State for the Home Department [2013] EWHC 1426 (Admin) applied equally in this statutory context. They included inadvertent disclosure, uncertainty about the source of any leak, uncertainty about who was safe to admit, and the practical difficulty of a lawyer-only ring.
4. Application to the facts. The claimant was outside the jurisdiction and held in a United States prison. The court could not adequately control or supervise his use of the material. Disclosure to lawyers of choice without disclosure to the claimant would create an impossible position, and no proposed safeguards removed the national-security risks.
5. Order. The Secretary of State was given permission to withhold the sensitive material. No closed judgment was produced.