HF & Anor v Ministry of Defence

In closed-material proceedings, the court must first decide whether disclosure would damage national security. If it would, the court must then decide whether a summary or further disclosure is required by Article 6 of the European Convention on Human Rights. The Article 6 standard is context-specific. It depends on the nature of the proceedings, what is at stake, the ability of special advocates to protect the claimant’s interests, and the importance of the withheld material. A policy of neither confirming nor denying is not an automatic legal justification for withholding material, although it may protect national security in appropriate cases. Public interest immunity requires a two-stage assessment: substantial harm to the public interest, followed by a balance between that harm and the interests of justice.

The claimants were Iraqi civilians captured by British forces in Iraq in 2008 and subsequently detained by United States forces. They brought claims concerning alleged ill-treatment and wrongful detention. The defendant applied under the Justice and Security Act 2013 and CPR 82.13 for permission to withhold sensitive material and for a closed material procedure. The issues concerned disclosure of the identity of units involved in the operations, intelligence concerning the detention of one claimant, and three reports of the International Committee of the Red Cross.

The court had to determine whether disclosure would damage national security and, if so, whether further disclosure or a gist was nevertheless required to secure a fair trial under Article 6.

1. Closed material procedure. The court must first determine whether disclosure would damage national security. The executive’s view is entitled to appropriate weight, but the decision is for the court. The court must also consider whether measures short of a closed procedure could permit disclosure without causing that damage.
2. Article 6. If disclosure would damage national security, the court must separately decide whether a summary is necessary to secure procedural fairness. The standard is a spectrum which is context and case specific. The central question is whether the claimant can give effective instructions, but the court must also consider the nature of the proceedings, the importance of the material, the role of special advocates, and whether disclosure is needed to maintain public confidence in the rule of law.
3. The claims concerned historic events and financial compensation, with no current restriction on liberty. Although the allegations involved serious human-rights violations, the claimants could provide their own accounts, had substantial information already, and had strong suspicions about the matters withheld. The material was unlikely to be significant to the factual dispute, and the special advocates had full disclosure in the closed procedure. Further disclosure concerning the identity of special-force units and the intelligence concerning ZMS was therefore unnecessary for a fair trial.
4. The policy of neither confirming nor denying was not automatically decisive. In the circumstances, however, consistently maintaining the policy concerning special-force involvement was capable of protecting national security. No gist could disclose the relevant information without effectively confirming or denying it.
5. Public interest immunity. Disclosure of the ICRC reports would cause substantial harm to the United Kingdom’s relationship with the ICRC. The reports had limited significance to the issues and related to an earlier period. The balance therefore favoured maintaining immunity. The defendant was directed not to disclose the remaining material agreed to be sensitive.