Belhaj & Anor v Straw & Ors

For a declaration under section 6 of the Justice and Security Act 2013, the court need identify only one relevant piece of sensitive material which would otherwise be disclosable. The material need not concern a central issue or the core allegations. The court must be satisfied that the Secretary of State considered public interest immunity, that the material is sensitive and disclosable, and that a closed material procedure serves the fair and effective administration of justice. The section 6 stage is a gateway, not a determination of what material will ultimately be deployed in closed proceedings. The court should exercise rigour and caution, but should not assess the merits of the claim or conduct the detailed disclosure exercise reserved for later stages.

The claim concerned allegations that the defendants were complicit in the extraordinary rendition, detention and torture of the claimants. The proceedings involved claims in tort and issues governed by Malaysian, Thai, United States and Libyan law. The Supreme Court had previously held that state immunity and foreign act of state doctrines did not prevent the claims from proceeding.

The defendants applied under section 6 of the Justice and Security Act 2013 for a declaration permitting closed material applications. They relied on sensitive material relevant to the pleaded allegations, causation, motive, lawfulness, bad faith, damages and other issues. The claimants and special advocates argued that the real issues had not been sufficiently identified and that the evidence already in the public domain made a closed procedure unnecessary.

1. The application was granted. The court declared that these were proceedings in which a closed material application might be made under section 6 of the Justice and Security Act 2013.

2. The statutory requirements were fourfold: the Secretary of State must have considered whether to make or advise a public interest immunity claim; there must be sensitive material which would be disclosable, or would be disclosable but for section 6(4)(b); the declaration must serve the fair and effective administration of justice; and the court must decide to exercise its discretion. The Secretary of State had considered public interest immunity, so the precondition was satisfied.

3. The first condition did not require the material to relate to a central or core issue, or to be highly relevant. Section 6(6) permitted reliance on a sample and on material relevant to a single issue. It was enough that one sensitive passage in one document would otherwise require disclosure on a pleaded issue.

4. The court was entitled to proceed on the basis of the existing statements of case, including the defendants’ general denial. It was not the function of a section 6 application to assess the strength of the claim, investigate whether the defendants’ stance was in bad faith, or require a positive open defence to the core narrative. The Official Secrets Act 1989 and the policy of neither confirming nor denying could, in the circumstances, prevent fuller open pleading at this stage.

5. The second condition was satisfied. The material was relevant and necessary to a fair resolution of issues including the lawfulness of detention, causation, motive, bad faith, knowledge of treatment, injury and loss, and aggravated or exemplary damages. Disclosure in open proceedings would significantly damage national security. Public interest immunity would likely exclude important evidence and create a real risk that the claim, or aspects of it, could not be tried under the Carnduff jurisdiction. Gisting, confidentiality rings and private hearings were unlikely to provide a satisfactory alternative.

6. The declaration was only the gateway stage. It did not determine whether any particular material would ultimately be disclosed or deployed in closed proceedings, and it remained reviewable under section 7.

The judgment records that the Court of Appeal upheld an earlier decision determining the applicable foreign laws. The Supreme Court subsequently held that the defendants could not rely on state immunity or foreign act of state doctrines to avoid liability or justiciability. Those decisions concerned the same litigation and are not separately treated as cited authorities.