Rahmatullah v Ministry of Defence & Anor

A declaration under section 6 of the Justice and Security Act 2013 is justified where sensitive material would otherwise require disclosure and a closed material procedure is in the interests of the fair and effective administration of justice. The court must identify material necessary to resolve issues in the proceedings and consider whether a workable alternative exists. A declaration opens a gateway to a closed material procedure; it does not determine finally that the procedure will be used. The declaration must remain under review. A confidentiality ring may sometimes provide a sufficient alternative, particularly where the material is not specific to the claimant and restricted disclosure would not create professional difficulty or damage national security.

The defendants applied under section 6 of the Justice and Security Act 2013 for declarations that closed material applications might be made in three sets of proceedings. The claims concerned alleged unlawful detention, transfers between British and United States custody, and ill-treatment in Iraq and Afghanistan.

The court considered whether the statutory conditions were met in the claims brought by Yunus Rahmatullah, Amanatullah Ali, XYZ, HTF and ZMS. The central issues were whether sensitive material would otherwise require disclosure and whether a closed material procedure was necessary for the fair and effective determination of the proceedings.

1. The court made section 6 declarations in the proceedings of Yunus Rahmatullah, Amanatullah Ali, HTF and ZMS, but refused the application concerning XYZ.
2. Under section 6 of the Justice and Security Act 2013, the court had to be satisfied that a party would be required to disclose sensitive material, or would be required to do so but for the statutory possibilities including public interest immunity, and that a declaration was in the interests of the fair and effective administration of justice. The Secretary of State’s prior consideration of public interest immunity was also required.
3. The declaration was only the first stage. Under section 7, the court had to keep it under review, formally review it after pre-trial disclosure, and revoke it if the statutory interests no longer supported continuation. It was sufficient at this stage that the conditions were met in relation to relevant material; the defendants did not need to identify every item that might eventually qualify.
4. In the Rahmatullah and Ali claims, sensitive material concerning the reasons for detention, suspected terrorist-group membership and the reliability of the underlying intelligence was necessary to resolve the issues. Special advocates needed to test that material, and no realistic alternative to a closed procedure had been shown.
5. In the HTF and ZMS claims, detailed allegations of mistreatment made investigation of operational planning, intelligence, training, methods and monitoring necessary to assess credibility. Restricted disclosure to lawyers would not be workable because the material related directly to the claimants’ own cases and evidence.
6. The position was different for XYZ. The defendant had not yet pleaded its case on knowledge of the risk of ill-treatment. It was therefore premature to conclude that disclosure of the sensitive documents would be necessary. A confidentiality ring remained a possible alternative, and the material was not specific to XYZ. The application was accordingly refused in that case.

Not an appeal. The judgment determined applications made in the High Court proceedings.