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Al Rawi & Ors v The Security Service & Ors
Factual and Procedural Background
The Respondent (one of several former detainees) sued the Appellants (security and intelligence agencies of the United Kingdom) for damages. The pleaded torts included false imprisonment, trespass to the person, conspiracy, torture and breaches of the Human Rights Act 1998. While the Appellants accepted that transfers and detention had occurred, they denied liability and asserted they possessed highly sensitive material that could not be revealed without harming national security or other public interests. They therefore filed both an open and a proposed “closed” defence.
Faced with up to 250,000 potentially relevant documents (about 140,000 thought to attract public-interest immunity (PII)) and an estimated three-year ministerial review, the Appellants asked the court to substitute a closed material procedure (CMP) for the conventional PII process. A preliminary issue was therefore ordered: whether, in an ordinary civil claim for damages, a court could lawfully direct a CMP of the kind described by the parties.
Silber J answered “yes”. The Court of Appeal reversed, declaring that in an ordinary civil claim the court possessed no such power. Although the underlying damages claims later settled, the UK Supreme Court granted permission and, after two days of argument, decided to rule on the point of principle.
Legal Issues Presented
- Does the common law empower a court, in the absence of statutory authority, to replace the ordinary PII process with a closed material procedure in an ordinary civil action for damages?
- If such a power exists, in what circumstances (if any) is its exercise permissible?
Arguments of the Parties
Appellants' Arguments
- A fair trial is an absolute right, but the procedural means of attaining it are flexible; exceptional cases may necessitate CMPs.
- The PII regime is flawed: (a) the balancing test is artificial; (b) material excluded under PII may prevent the court from reaching the right result; (c) inequality of arms arises because the State knows the closed material; (d) when PII fails, the State faces an invidious choice between disclosure and capitulation; (e) scale—here hundreds of thousands of documents—makes PII unworkable.
- The court’s inherent jurisdiction to regulate procedure is sufficiently broad to authorise CMPs where
necessary in the interests of justice
.
Respondent's Arguments
- Open justice and natural justice are fundamental common-law rights: parties must see, hear and challenge all evidence relied on by the court.
- The common law already balances competing interests via PII; abandoning that process would erode centuries-old safeguards.
- Any such departure would constitute a constitutional change that only Parliament—after democratic debate—can make.
- CMPs damage public confidence because judgments, reasoning and evidence would remain hidden indefinitely.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Scott v Scott [1913] AC 417 | Open-justice principle; any derogation must be necessary | Core authority underpinning Respondent’s argument that CMPs violate fundamental common-law rights. |
| R v Sussex Justices, ex p McCarthy [1924] 1 KB 256 | Justice must be seen to be done | Cited to stress visibility as an element of fairness. |
| AG v Leveller Magazine [1979] AC 440 | Limited circumstances where publicity may be curtailed | Reiterated the narrow scope for secrecy in civil proceedings. |
| Kanda v Government of Malaya [1962] AC 322 | Right to know and meet the case against one | Used to explain natural-justice objections to CMPs. |
| Lee v The Queen (1998) 195 CLR 594 | Centrality of cross-examination | Relied on to criticise any process conducted in a party’s absence. |
| Carnduff v Rock [2001] 1 WLR 1786 | Civil claim struck out where public-interest secrecy makes trial impossible | Illustrates the dilemma said to justify CMPs; majority nonetheless treated strike-out as preferable to secret trial absent legislation. |
| R v Davis [2008] 1 AC 1128 | No anonymous prosecution witnesses without statutory basis | Analogy drawn: courts cannot erode confrontation rights; any change is for Parliament. |
| Conway v Rimmer [1968] AC 910 | Judicial, not ministerial, control of PII balancing | Foundation of modern PII; highlighted courts’ role as final arbiter. |
| Science Research Council v Nasse [1980] AC 1028 | Disclosure necessary for fair disposal | Cited when describing mechanics of PII review. |
| Duncan v Cammell Laird [1942] AC 624 | Early formulation of Crown privilege | Shown to have been overtaken by Conway v Rimmer. |
| R v Chief Constable of West Midlands, ex p Wiley [1995] 1 AC 274 | Detailed PII procedure and balancing | Benchmarked orthodox process that CMP sought to displace. |
| R v H [2004] 2 AC 134 | Permissible use of special advocates in criminal PII | Accepted analogy for appointing special advocates in civil PII, not for wholesale CMP. |
| Secretary of State v AF (No 3) [2010] 2 AC 269 | Minimum disclosure obligations under Article 6 in statutory CMP | Contrasted Convention minima with potentially higher common-law standards. |
| R v Shayler [2003] 1 AC 247 | Possible use of special advocate in Official Secrets context | Court noted obiter comments were no authority for CMP in ordinary civil claims. |
| Secretary of State v Rehman [2003] 1 AC 153 | Closed evidence in national-security appeals | Distinguished as statutory context. |
| R (Roberts) v Parole Board [2005] 2 AC 738 | Closed evidence permissible because statute expressly allowed | Cited to show legislature, not courts, must sanction CMPs. |
| R (Malik) v Manchester Crown Court [2008] 4 All ER 403 | Judicial power to request special advocate | Held irrelevant because CMP issue not argued. |
| A v HM Treasury [2010] 2 AC 534 | Use of special advocate absent express statute (obiter) | Treated as non-binding; did not undermine Court of Appeal’s conclusion. |
| R (AHK) v Home Secretary [2009] 1 WLR 2049 | Guidance on appointing special advocates | Likewise classed as obiter and context-specific. |
| Mohamed (No 2) [2011] QB 218 | Open-justice considerations in national-security litigation | Supported majority’s emphasis on transparency and public confidence. |
| Ambard v A-G for Trinidad [1936] AC 322 | Justice must withstand public scrutiny | Quoted in critique of secret civil trials. |
| Department of Economics of Moscow v Bankers Trust [2005] QB 207 | Limited departures from open justice where necessary | Illustrated narrow, fact-specific exceptions already recognised. |
| British Sky Broadcasting v Competition Commission [2010] 2 All ER 907 | Confidentiality “rings” in commercial cases | Example of tailored, less-intrusive solution than CMP. |
| Norwich Pharmacal Co v Customs & Excise [1974] AC 133 | Third-party disclosure remedies | Mentioned to demonstrate overlap of public-law and private-law proceedings. |
| In re K (Infants) [1965] AC 201 | Protection of children may justify private hearings | Cited as a rare, long-standing common-law exception. |
Court's Reasoning and Analysis
The majority (Judges Dyson, Hope, Brown, Kerr, Mance and Lady Hale) held that:
- The open-justice and natural-justice principles are fundamental; any departure must be grounded either in statute or demonstrable necessity of the kind already recognised (e.g., children, wards, confidentiality rings).
- While the court possesses an inherent power to regulate its own procedure, that jurisdiction cannot be exercised to
deny
parties those fundamental rights; only Parliament may authorise so radical a change. - Replacing the PII process wholesale would abolish the judicial balancing exercise required since Conway v Rimmer and remove procedural safeguards.
- Practical difficulties—volume of documents, cost, delay—do not justify abandoning constitutional principles; the same review would still be required even under a CMP.
- Authorities where special advocates or partial secrecy were allowed all turned on statutory frameworks or very different contexts; none establishes a free-standing common-law power.
- Striking out a claim (as in Carnduff) remains an available—if unattractive—remedy; systemic reform should come from legislation, not judicial innovation.
A minority (Judge Clarke; Judge Phillips would have disposed of the case on narrower grounds) considered that, in exceptional cases following completion of the PII exercise, the court could fashion a limited CMP with the parties’ consent or where strictly necessary
to avoid complete denial of justice, but no such order could be made on the broad terms proposed.
Holding and Implications
Appeal dismissed. The Supreme Court (majority) affirmed the Court of Appeal’s declaration that the common law gives no power to order a closed material procedure in an ordinary civil claim for damages.
Implications: The decision preserves the orthodox PII framework and confines any wider use of CMPs to situations expressly authorised by Parliament. Although some Justices hinted that future incremental development might be conceivable in very narrow circumstances, the ruling makes clear that wholesale substitution of CMP for PII in civil litigation can only be achieved through legislation.
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