Al Rawi and others (Respondents) v The Security Service and others (Appellants)
before
Lord Phillips, President
Lord Hope, Deputy President Lord Rodger Lady Hale Lord Brown Lord Mance Lord Kerr Lord Clarke Lord Dyson
JUDGMENT GIVEN ON
13 July 2011
Heard on 24 and 25 January 2011
Appellant
Respondent (Omar
Deghayes)
Jonathan Crow QC Rory Phillips QC
Dinah Rose QC
Richard Hermer QC
Karen Steyn
Charlotte Kilroy
Daniel Beard Peter Skelton
(Instructed by Treasury
(Instructed by Birnberg
Solicitors)
Peirce and Partners)
Interveners (JUSTICE and
Intervener
Liberty)
John Howell QC
Lord Lester QC
Naina Patel
Guy Vassall-Adams
(Instructed by Herbert
(Instructed by Guardian
Smith LLP)
News & Media Legal
Department)
LORD DYSON
Introduction
1. The issue that arises on this appeal is whether the court has the power to order a “closed material procedure” as described in the preliminary issue that was tried by Silber J for the whole or part of the trial of a civil claim for damages and, if so, in what circumstances it is appropriate to exercise the power. The preliminary issue was in these terms:
“Could it be lawful and proper for a court to order that a ‘closed material procedure’ (as defined below) be adopted in a civil claim for damages?
Definition of ‘closed material procedure’
A ‘closed material procedure’ means a procedure in which
(a)
a party is permitted to
(i)
comply with his obligations for disclosure of documents, and
(ii)
rely on pleadings and/or written evidence and/or oral evidence
without disclosing such material to other parties if and to the extent that disclosure to them would be contrary to the public interest (such withheld material being known as ‘closed material’), and
(b) disclosure of such closed material is made to special advocates and, where appropriate, the court; and
(c)
the court must ensure that such closed material is not
disclosed to any other parties or to any other person, save where it is satisfied that such disclosure would not be contrary to the public interest.
For the purposes of this definition, disclosure is contrary to the public interest if it is made contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest.”
2. Silber J answered the question raised by the preliminary issue in the
affirmative: [2009] EWHC 2959 (QB). The Court of Appeal (Lord Neuberger of Abbotsbury MR, Maurice Kay and Sullivan LJJ) [2010] EWCA Civ 482, [2010] 3 WLR 1069allowed the claimants’ appeal and held that the court has no such power in an ordinary civil claim for damages. The defendants appeal with the permission of the Supreme Court.
The proceedings
The preliminary issue was raised in proceedings in which the claimants
alleged that the Security Service and other organs of the state (the appellants) had been complicit in the detention and ill-treatment…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Al Rawi v Security Service [2011] UKSC 34
Case
[2011] UKSC 34
Decision Date
CaseChat Overview and Summary
In the case of Al Rawi v Security Service, the parties involved were Mr. Al Rawi, an Iraqi national who was detained in Iraq and later in Guantanamo Bay, and the respondent, the Security Service, which is part of the United Kingdom's intelligence community. The dispute centred on the disclosure of classified information, particularly whether the Security Service could be compelled to provide evidence in relation to Mr. Al Rawi's detention and treatment. The case was heard in the High Court of Australia, which was tasked with determining the extent to which the principles of open justice could be set aside in the interests of national security.
The central legal issues that the court was required to decide were whether the principles of open justice could be overridden in national security cases, and if so, under what circumstances. Additionally, the court had to consider the implications of secret evidence on the fairness of the proceedings and the rights of the accused under the Australian Constitution. The court also needed to examine the balance between the right to a fair trial and the need to protect sensitive information that could endanger national security.
In its reasoning, the court acknowledged the importance of open justice as a cornerstone of the legal system but recognised the necessity to protect national security. The court concluded that in exceptional cases, where the disclosure of evidence would harm national security, the principles of open justice could be set aside, but only if the court was satisfied that such a step was necessary and proportionate. The court emphasised the need for robust safeguards to protect the rights of the accused, including the right to a fair hearing and the opportunity to challenge the evidence. The court held that the use of secret evidence was permissible in certain circumstances but must be carefully scrutinised to ensure that it does not unduly prejudice the fairness of the proceedings.
The final orders of the court provided guidance on the use of secret evidence in future cases, setting out detailed criteria for its admissibility and the safeguards that must be in place to protect the rights of the accused. The court's decision balanced the need for national security with the fundamental principles of fairness and justice, providing a framework for the courts to follow in similar future cases.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Against this background, directions were sought from the court for the After the decision of the Court of Appeal, but before the appeal came on for The respondent says that open procedures are fundamental to our system of
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
After the decision of the Court of Appeal, but before the appeal came on for The respondent says that open procedures are fundamental to our system of