Mustafa Muhammad Masud Al-Jadid Al-Uzaybi (Abu Faraj Al-Libi) v The Home Office & Ors

Closed material supplied to a Special Advocate is subject to the same fundamental restriction on collateral use as material disclosed to a party or solicitor. It may be used only for the proceedings for which it was supplied, unless the court or the provider gives permission, or another exception in CPR 31.22 applies.

Special Advocates’ independence must be protected in the practical handling, collection and retention of closed material. Any retrieval should ordinarily be conducted through SASO, independently of government teams representing the opposing party. Legal professional privilege and confidential material must be protected from access by those opposing the excluded party. A court may leave further remedial action pending an ongoing lessons-learned process.

The claimant brought proceedings alleging complicity by UK intelligence agencies in his mistreatment and torture while detained at CIA black sites. A closed material procedure was authorised under the Justice and Security Act 2013, and Special Advocates were appointed.

One Special Advocate had retained closed material and notes from concluded litigation brought by Abu Zubaydah, which were relevant to disclosure issues in the present proceedings. Government and security-service personnel urgently retrieved those materials from her chambers while she was absent. The materials were later returned by consent, and the Special Advocates were permitted to use them.

The court considered the proper use of closed material supplied to Special Advocates, the lawfulness and propriety of the retrieval process, the protection of privileged material, and whether further directions or remedies were required.

1. Use of closed material. CPR 31.22 applies in substance to closed documents provided to Special Advocates under CPR Part 82, notwithstanding that Special Advocates are not parties. The rule codifies the common-law principle against collateral use. Closed material may therefore be used only for the proceedings in which it was provided, subject to the exceptions in CPR 31.22(1)(a)–(c). In practical terms, permission from the court or the providing party will normally be required for use in another case.
2. This restriction does not prevent a Special Advocate from using knowledge acquired in one case to identify possible failures of disclosure or candour in another. Where the Government does not consent, the proper course is to seek permission from the court.
3. Motivation and propriety. The security services had legitimate national-security reasons for seeking the return of the material. The court therefore declined to find that they acted for an improper purpose. Nevertheless, the timing and method of retrieval were seriously unsatisfactory.
4. Independence and handling arrangements. Government departments and agencies representing the opposing party must respect the independence of Special Advocates. Any necessary collection of material should, at minimum, be undertaken by staff operating under SASO, rather than by other GLD teams or government agencies. The suggestion that such staff could retrieve Special Advocates’ notes at any time was apt to undermine confidence in the system.
5. Material subject to legal professional privilege, or otherwise confidential as against the Government, must not be made available to the opposing party or its representatives. The same safeguards should apply to material held for other cases or in another capacity, including material held by counsel to the Investigatory Powers Tribunal.
6. The court found five respects in which GLD, SIS, MI5 and SASO had acted unsatisfactorily, including the unjustified suggestion that the Special Advocate had acted improperly, inadequate protection of independence and privilege, and inadequate consideration of other materials in her safe. Since a lessons-learned process was underway, the court deferred any final decision on further action and invited directions for filing and service of the resulting protocol.

First-instance judgment. The judgment does not state an appellate history.