K & Ors, R (on the application of) v The Secretary of State for Defence & Anor

A public-law claim based on a policy may involve the determination of civil rights under Article 6 of the European Convention on Human Rights, even where the policy is non-statutory and involves evaluative judgment or discretion. The key question is whether the policy contemplates sufficiently defined outcomes that a court can assess for legality. Where Article 6 applies, disclosure must be sufficient to secure a fair hearing. A closed-material regime cannot be applied inconsistently with that requirement. The court also held, for the future conduct of the proceedings, that Articles 2, 3 and 8 did not apply to the alleged conduct in Afghanistan because the claimants were not within the United Kingdom’s jurisdiction. The appeal concerning Article 6 was allowed and the proceedings were remitted if disclosure could not be agreed.

Three Afghan claimants alleged that they had worked as covert human intelligence sources for the Ministry of Defence and sought protection, relocation and compensation under public-law claims. They also advanced private-law claims, which had been stayed. The defendants neither confirmed nor denied the alleged relationship and obtained a declaration under section 6 of the Justice and Security Act 2013, permitting sensitive material to be withheld from the claimants while it was disclosed to special advocates.

The Divisional Court held that the public-law claims did not concern the determination of civil rights for Article 6 purposes, that there was no freestanding common-law right to disclosure, and that Articles 2, 3 and 8 did not apply to events in Afghanistan. The appeal challenged those conclusions, particularly the need for further disclosure and the applicability of the Convention.

1. Disposition. The court allowed the appeal in relation to Article 6 of the European Convention on Human Rights. The proceedings were remitted to the Divisional Court for an expedited directions hearing if the necessary further disclosure could not be agreed. The respondents were ordered to pay 60% of the appellants’ reasonable costs of the appeal, subject to detailed assessment if not agreed.
2. Article 6 and policy-based claims. The fact that a claim depended on compliance with a policy rather than legislation did not prevent it from involving civil rights. If a policy for the protection or relocation of covert human intelligence sources ought to have existed, it would contemplate sufficiently defined outcomes, including relocation, compensation or a decision to provide no assistance for good reason. Those outcomes were capable of being assessed by the court on public-law principles, notwithstanding evaluative judgment and discretion. The reasoning of Ali v United Kingdom [2015] H.L.R. 872 supported that conclusion. The homelessness decision in Ali v Birmingham City Council [2010] 2 A.C. 39 was too remote in context to bind the court on claims concerning CHIS relocation and compensation. The phrase civil right was autonomous, and the Strasbourg Court was the ultimate arbiter of its meaning. The principles identified in R (Hicks) v Commissioner of Police of the Metropolis [2014] 1 WLR 2152 supported following authoritative Strasbourg guidance.
3. Disclosure. Resolution of the public-law claims therefore involved the determination of civil rights. Article 6 required whatever disclosure was necessary to provide a fair hearing. Section 14(2)(c) of the Justice and Security Act 2013 and the relevant Civil Procedure Rules could not be read as requiring a procedure inconsistent with that obligation.
4. Articles 2, 3 and 8. Although the point was not strictly necessary to dispose of the appeal, the court decided it for the benefit of the parties and future conduct of the proceedings. Article 1 jurisdiction was primarily territorial. The exceptional extra-territorial categories identified in Al-Skeini v United Kingdom (2011) 53 E.H.R.R. 18 included state-agent authority and control, effective control over an area and the espace juridique category, as explained in Al-Saadoon v Secretary of State for Defence [2016] EWCA Civ 811. The second and third categories did not apply because United Kingdom forces lacked effective control over Helmand and Afghanistan was not a Convention state. Within the first category, there was no diplomatic or consular act and no physical power or control over the claimants, who remained free to assist or not assist. Recruiting CHIS in hostile territory was not an exercise of public powers of the kind contemplated by the Strasbourg jurisprudence. The claimants were therefore not within United Kingdom jurisdiction when the alleged breaches occurred.
5. Common-law disclosure. The court did not decide whether there was a freestanding common-law right to disclosure. It stated obiter that, in light of the 2013 Act, that submission was most unlikely to be correct.

1. Court of Appeal (Civil Division): [2016] EWCA Civ 1149. The appeal concerning Article 6 was allowed. The proceedings were remitted to the Divisional Court if further disclosure could not be agreed.
2. Divisional Court, Administrative Court: held that the public-law claims did not concern the determination of civil rights, that there was no freestanding common-law right to disclosure after the section 6 declaration, and that Articles 2, 3 and 8 did not apply to the alleged events in Afghanistan.