Khaled v The Security Service & Ors

Disclosure obligations in closed material proceedings depend on the context and all the circumstances. The enhanced disclosure required by AF (No.3) is directed principally to proceedings challenging a current control order or other substantial restriction on liberty. It does not automatically apply to a later private law claim for compensation alleging misfeasance or conspiracy. Under the Justice and Security Act 2013 and CPR Part 82, the court must permit material to be withheld where disclosure would damage national security, while disclosing as much as is consistent with that obligation. The statutory phrase “would be damaging” requires a prediction of damage and substantially corresponds with the public interest immunity test.

The claimant brought private law claims for misfeasance in public office and conspiracy to injure against the Security Service, the Secret Intelligence Service and government departments. The claims concerned alleged reliance on information obtained from Libyan detainees and the claimant’s subsequent designation under United Nations sanctions. A declaration had been made under section 6 of the Justice and Security Act 2013.

The applications concerned disclosure, including whether the claimant was entitled to disclosure sufficient to meet the standard identified in AF (No.3), and whether the statutory national security test differed materially from public interest immunity. The central issue was the extent of disclosure required in a historic compensation claim where no current restriction on liberty was being challenged.

1. Application of AF (No.3). The court declined to impose the enhanced disclosure obligation identified in AF (No.3). That obligation must be assessed in context. It was developed for proceedings involving current control orders or comparable restrictions on liberty, rather than a private law claim for compensation after the event.
2. Contextual Article 6 assessment. The requirements of Article 6 are not absolute or fixed. They depend on the context and all the circumstances. This claim did not concern detention, a current interference with liberty, or a current challenge to the claimant’s designation. The claimant knew the substance of the allegations leading to his designation and could not materially assist on whether information had been obtained through mistreatment or communicated to ministers.
3. Closed material procedure. Disclosure in the statutory procedure was governed by the Justice and Security Act 2013 and CPR Part 82. The judge inclined to the view that common law fairness principles could remain relevant, but only so far as compatible with the Act. The defendants had to disclose as much as possible consistently with section 8(1)(c) of the Act and CPR 82.14(10), but no more. Material could be tested within the closed procedure by the special advocates.
4. National security and PII. The phrase “would be damaging” in section 8(1)(c) is predictive. It does not require proof that damage has already occurred. The statutory test was materially the same as the test applicable to public interest immunity.
5. The disclosure applications were determined accordingly. The judge also ruled in closed that a limited number of redactions could be withheld on public interest immunity grounds.