Witness IIA126, R (on the Application of) v The Chairman of the Independent Inquiry Relating to Afghanistan

In case-management decisions involving closed material procedures, the court should pursue a timetable that achieves a prompt and workable resolution while respecting the need to determine legal and procedural issues on the material relevant to the applications.

A rolled-up judicial review hearing may be appropriate where expedition is important, it is likely to achieve finality sooner, a separate permission hearing would be lengthy, and the additional burden on the defendant is limited. Disclosure requests should not ordinarily be dismissed prematurely where the relevant procedural deadline has not expired and the claimant’s ability to assess the case remains materially constrained. Issues concerning the scope and operation of a closed material procedure may properly be determined together with the substantive applications where abstract determination would be unsatisfactory.

The claimant challenges restriction orders made by the Chairman of the Independent Inquiry Relating to Afghanistan for so-called Green Hearings. Earlier case-management directions made by Steyn J permitted a closed material application under section 6 of the Justice and Security Act 2013 and recognised a possible inherent-jurisdiction procedure for material outside the statutory definition of sensitive material, relying on R (Haralambous) v Crown Court of St Albans [2018] UKSC 1, [2018] AC 236.

Following open and closed hearings, the court was required to decide the appropriate timetable, whether the judicial review should proceed as a rolled-up hearing, whether parts of the claimant’s disclosure requests should be dismissed, and whether issues concerning the closed material procedure should be determined separately or at the same hearing as the applications.

1. Rolled-up hearing. The court ordered a rolled-up hearing. The factors identified in R (Al-Haq) v Secretary of State for Business and Trade [2025] EWHC 173 (Admin) were relevant: the importance of a prompt final decision, whether the procedure would achieve finality sooner, whether it would be substantially longer than a permission hearing, and the burden on the defendant. The statutory 14-day time limit for judicial review applications concerning public inquiries under section 38 of the Inquiries Act 2005 reinforced the importance of expedition. The complexity of open and closed hearings made a separate permission hearing likely to be lengthy, while the defendant did not anticipate a significantly greater burden from a rolled-up hearing.
2. Disclosure requests. The court declined to dismiss disclosure requests numbered 6–19 at that stage. The deadline in the earlier order had not expired, and significant obstacles remained to the claimant’s assessment of the factual case, including the absence of an established legally privileged communication mechanism between the claimant’s Special Advocates and his open representatives. Premature dismissal was therefore inappropriate.
3. Closed material procedure. The court preferred a single composite stage dealing with the jurisdictional scope and procedural approach of the closed material procedure, the defendant’s applications to withhold material, and any unresolved disclosure requests. Determining points of principle in the abstract could be difficult or unsatisfactory without reference to the closed material. A single stage was also more efficient and reduced delay caused by separate open and closed hearings.
4. Gists and directions. The gists of the Green Hearings had central importance because they would enable the Special Advocates to formulate disclosure and clarification requests. They should be provided within two to three weeks if possible, with any claim that this was impossible receiving urgent consideration. The parties were invited to agree a draft order reflecting the directions, and permission was granted for the Second Interested Party to add Mr Agha Afghan as a named individual.

The judgment records earlier case-management proceedings before Steyn J, including an order dated 13 November 2025 and an open judgment dated 3 November 2025. This court subsequently determined further case-management issues following open and closed hearings. No appeal history is stated.