Secretary of State for the Home Department v TL

In closed material proceedings, the court must safeguard disclosure to the excluded party so far as possible, subject to the protected public interests. Where Article 6 applies, the party must be given the essence of the case against them.

The special advocates ordinarily take the lead in identifying whether further disclosure is required because they have seen the closed material. Where, after a detailed disclosure process, they advance no further disclosure points, the court is generally not required to hold a hearing or second-guess their individual judgments. The court must nevertheless keep disclosure under review as the proceedings develop.

The Secretary of State had obtained permission to make a terrorism prevention and investigation measure in respect of TL and to withhold closed material from him. TL’s open representatives argued that the disclosure failed to reveal the essence of the national security case, contrary to Article 6, and sought material relevant to a separate abuse of process challenge.

By the hearing, the abuse of process disclosure request was no longer pursued. The outstanding issue was whether further disclosure concerning the national security case was required. The special advocates had reviewed the closed material and made no further disclosure submissions.

1. Role of the court. A closed material procedure derogates from natural justice and open justice. The applicable rules must safeguard, so far as possible, the excluded party’s right to know the case against them without infringing protected public interests. Where Article 6 applies, the party must be told the essence of the case against them.
2. Role of special advocates. A properly informed challenge to the adequacy of open disclosure ordinarily requires sight of the closed material. The special advocates therefore take the lead in making disclosure requests, while taking account of submissions from the open representatives.
3. Effect of the disclosure procedure. Where the special advocates indicate under CPR 80.25(2)(a) that they have no further disclosure points, a hearing is generally unnecessary. The court is not ordinarily required to second-guess their individual judgments. That approach reflects the structure of the rules and the substantial judicial time and delay that would otherwise result.
4. Application. The court considered the open representatives’ complaints, the disclosure already given, the closed hearing, and the special advocates’ closed note. The special advocates had conducted the process diligently and had considered the disclosure tests under CPR Part 80 and Article 6. There was no reason to reopen individual disclosure decisions or order further disclosure at that stage.
5. The special advocates and the judge at the substantive review hearing were required to keep disclosure under review. Further directions could be given if additional open disclosure became warranted.