K, A & B, R (on the application of) v Secretary of State for Defence Secretary of State for the Foreign and Commonwealth Affairs

Once proceedings are subject to the statutory closed material procedure, disclosure is governed by the Justice and Security Act 2013. A general common law duty of fairness does not require disclosure equivalent to that required by Article 6 ECHR.

Article 6 requires disclosure sufficient to enable a party to answer the case against them, but the extent of protection depends on context and all the circumstances. Article 6 applies only where the proceedings determine a civil right. A judicial review claim, a claim against a public body, or an evaluative decision does not automatically fall outside Article 6. Extra-territorial ECHR jurisdiction remains exceptional and depends on the State exercising control and authority over the individual, including through physical power.

Three Afghan nationals claimed that they had worked for the defendants as covert human intelligence sources and sought relief concerning protection, compensation and relocation. Their amended claims included public law, ECHR, contract, tort and misrepresentation grounds.

The contract, tort and misrepresentation claims, and claims for just satisfaction, had been stayed by consent. The defendants had obtained a declaration under section 6 of the Justice and Security Act 2013 permitting a closed material application. The immediate issue was whether further disclosure was required because refusing it would make the court act inconsistently with Article 6 ECHR.

The central questions were whether the unstayed policy and ECHR claims concerned the determination of civil rights and whether the claimants fell within the United Kingdom’s jurisdiction for ECHR purposes.

1. Disclosure under the Justice and Security Act 2013. The court rejected the suggestion that a free-standing common law duty of fairness required disclosure comparable to Article 6 disclosure once the statutory closed material procedure had begun. Disclosure was governed by the Justice and Security Act 2013. Sections 6 to 14 had to be read consistently with Article 6, but further disclosure was required only if the court would otherwise act inconsistently with that Article.
2. Article 6 and civil rights. The extent of disclosure required under Article 6 depends on context and all the circumstances. The policy claim did not arguably involve the determination of civil rights on the claimants’ case as advanced. Article 6 was therefore not engaged on that basis. The fact that proceedings are brought by judicial review or against a public body is not determinative. Nor is an evaluative or discretionary decision necessarily outside Article 6. The relevant question is whether there is an arguable right recognised in domestic law and whether the proceedings are directly decisive of that right.
3. ECHR jurisdiction. The asserted facts did not establish that the claimants were within the United Kingdom’s territorial jurisdiction or subject to its control or authority for Article 1 purposes. Extra-territorial jurisdiction is exceptional. It may arise where State agents exercise control and authority over an individual, or use physical power over that person, even without effective control of the relevant territory. The claimants’ asserted employment and contact with British personnel did not satisfy that test.
4. The court declined to treat the stayed private law claims as capable of supplying the Article 6 basis for disclosure in the unstayed claims. The separate submission based on Article 1 of Protocol 1 was irrelevant and, in any event, went too far. The disclosure application failed on the issues considered.

High Court (Administrative Court): The Divisional Court considered the disclosure issues arising under the Justice and Security Act 2013 and dismissed the application for further disclosure.