Andrew Hale-Byrne v Secretary of State for Business and Trade & Anor

A declaration permitting a closed material application under section 6 of the Justice and Security Act 2013 may be made where sensitive material is relevant to at least one issue and disclosure would damage national security. The court must also be satisfied that the declaration serves the fair and effective administration of justice. It need not decide at that stage whether the claim could proceed without a closed material procedure. Where public interest immunity would probably exclude material central to liability, that consequence may support a closed procedure, particularly where the procedure enables the court to investigate the substance of serious allegations. The Secretary of State’s national-security assessment should be respected unless vitiated by public-law error.

The claimant, a former civil servant, brought claims against two Secretaries of State alleging that departmental officials acted in bad faith by falsely identifying him as the source of leaked diplomatic telegrams and informing the press of his arrest. The claims included misfeasance in public office, alleged breaches of Articles 3, 8 and 18 ECHR, and unlawful processing of personal data.

The defendants sought a declaration under section 6 of the Justice and Security Act 2013, contending that sensitive material relevant to the reasons for the claimant’s arrest would require disclosure. The central issue was whether the statutory conditions for a closed material application were satisfied and whether such a declaration was in the interests of the fair and effective administration of justice.

1. The court made a declaration under section 6(1) of the Justice and Security Act 2013 that the proceedings were ones in which a closed material application might be made.

2. The first statutory condition was satisfied. Under section 6(4), it was enough that disclosure of sensitive material would be required in relation to one issue and that the material was relevant to that issue. The reasons for the claimant’s arrest and the information leading to it were central to liability. The court was satisfied that the material seen in closed form was sensitive material within section 6(11), because disclosure would unquestionably damage national security.

3. The court respected the Secretary of State’s assessment of national-security damage, subject to the qualification recognised in R (Begum) v Special Immigration Appeals Commission [2021] AC 765. No public-law error undermined the assessment.

4. The second condition under section 6(5) was also satisfied. If no declaration were made, the defendants would likely claim public interest immunity over material central to liability. If that claim succeeded, the material would be inadmissible and the court might be unable to test the defendants’ denial or determine the substance of the allegations. The claim might consequently fail for want of proof or be struck out on the principles in Carnduff v Rock [2001] 1 WLR 1786.

5. It was unnecessary at this stage to decide whether the claim could be tried without a closed material procedure. A declaration would permit investigation partly in open and partly in closed proceedings, with the Special Advocates seeking disclosure of material that could properly be made public. That was in the interests of the fair and effective administration of justice.