CX1 & Ors, R (on the application of) v Secretary of State for Defence & Anor

Where sensitive material is necessary to discharge a public authority’s duty of candour, the court may permit a closed material application under section 6 of the Justice and Security Act 2013 and Part 82 of the Civil Procedure Rules 1998. Disclosure may be made to the court and special advocates without disclosure to the claimant where disclosure would damage national security.

A closed hearing and judgment may depart from the open justice principle where publication would be contrary to the public interest. The court should arrange publication when the justification for secrecy falls away, subject to any necessary redactions.

These conjoined judicial review claims concerned decisions under the Afghan Relocations and Assistance Policy. The claimants challenged decisions that they were ineligible for relocation to the United Kingdom.

In the related open judgments, decisions concerning CX1, CX6 and the MP claimants were quashed, while CX4 and CX7’s claims were dismissed and CX2’s claim was withdrawn. The defendants then sought declarations permitting closed material applications so that sensitive material could be disclosed to the court and special advocates in compliance with their duties of candour.

The central issues were whether the statutory and procedural conditions for closed material applications were met, and whether the sensitive material should be withheld from the claimants.

1. The court granted the defendants’ applications. It made declarations under section 6 of the Justice and Security Act 2013 and Part 82 of the Civil Procedure Rules 1998, permitting closed material applications.

2. The purpose of the declarations was to enable the defendants to disclose sensitive material required to discharge their duties of candour. The material was disclosed to the court and to special advocates appointed under Part 82, but not to the claimants, because disclosure would damage the interests of national security.

3. The special advocates did not contest the declarations or the applications for permission not to disclose the material to the claimants. The court concluded, on the evidence, that they were right not to do so.

4. The court held a closed hearing and handed down a closed judgment addressing matters raised by the special advocates. The closed judgment did not alter or call into question the conclusions in the open judgments.

5. The court recognised that withholding the judgment’s contents departed from the open justice principle. It was satisfied that publication would be contrary to the public interest while disclosure could damage national security. Publication was to be arranged if and when the justification for secrecy fell away, possibly subject to redactions.

The judgment records related open judgments in the same proceedings:

• High Court (Administrative Court) — in the CX cases, [2024] EWHC 94 (Admin), decisions concerning CX1 and CX6 were quashed and remitted, CX2’s claim was withdrawn, and CX4 and CX7’s claims were dismissed.
• High Court (Administrative Court) — in the MP cases, [2024] EWHC 410 (Admin), the decisions that the claimants did not qualify for relocation were quashed. An application for permission to appeal remained outstanding.