Wednesday, 13 July 2011
Closed material procedure: two Supreme Court judgments
In Al Rawi v Security Service and others  UKSC 34, the Supreme Court has held that a "closed material procedure" for either the whole or part of the hearing of a civil claim is not permissible at common law. There is no common law power to replace the Public Interest Immunity (PII) procedure with a closed material procedure. Such procedure would be a departure from principles of open and natural justice: essential features of trial at common law. If such a procedure is considered to be necessary then it is for Parliament to legislate. The question of whether a closed material procedure could be used with the consent of the parties was left open.
The Al Rawi litigation has been settled but the
Supreme Court chose to hear the appeal relating to closed material procedure because of its general public importance in relation to trial procedure. Al Rawi and others had been detained in US Government-run detention facilities, including Guantanamo Bay. They alleged various forms of mistreatment had occurred.
A Press Release on the Al Rawi case is available. See Law and Lawyers 17th November 2010 and The Guardian 16th November 2010. Interestingly, the appeal was dismissed 5 to 3. Lord Rodger had heard the submissions but died before judgment though it was said that he had indicated that he would have dismissed the appeal.
In some instances, Parliament has already provided for closed material procedure. One such instance is the Employment Tribunals Act 1996 s.10(6). A challenge to this was considered in Home Office v Tariq  UKSC 35. Mr Tariq worked as an Immigration Officer and required a security clearance. His clearance was withdrawn in 2006 on the basis that his brother was arrested in relation to terrorism offences. The brother was convicted in 2008. There is not evidence to suggest that Mr Tariq had any involvement in terrorism.
The Employment Tribunal made an order for a closed material procedure, directing that Mr Tariq and his
representatives should be excluded from the proceedings when closed evidence or documents were being
considered. Mr Tariq appealed the order to the Employment Appeal Tribunal. The appeal was dismissed and a further appeal was dismissed by the Court of Appeal. The Court of Appeal, however, declared that Article 6 of the European Convention on Human Rights required Mr Tariq “to be provided with the allegations being made against him in sufficient detail to enable him to give instructions to his legal team so that those allegations can be challenged effectively”. This requirement is known as “gisting”. The Home Office appealed to the Supreme Court against the declaration and Mr Tariq cross-appealed against the conclusion that a closed material procedure was permissible.
The Supreme Court (8:1 - Lord Kerr dissenting) allowed the Home Office appeal and set aside the declaration made by the Court of Appeal requiring "gisting." In cases not involving the liberty of the subject, the question is whether the use of the closed material procedure will impair the very essence of the right to a fair trial. That cannot be said to be so in this case, as Mr Tariq’s claim will be determined by an independent and impartial tribunal and the disadvantages that the procedure gives rise to will as far as possible be minimised.
A Press Release on the Tariq case is also available.
In due course, Law and Lawyers will provide further links to any commentary on these cases.
As promised - here is one commentary - Rosalind English on UK Human Rights Blog 17th July - "Secret evidence v Open Justice: the current state of play."