Court of Appeal upholds two CMP applications under Part 82 CPR and the JSA 2013 (McGartland and Sarkandi)

The Court of Appeal has dismissed two separate appeals against declarations under section 6 of the Justice and Security Act 2013 (JSA 2013) that the relevant proceedings were ones in which closed material applications could be made to the court. In doing so, and in relation to both cases, the Court of Appeal found the two conditions under JSA 2013, sections 6(4) and 6(5) had been met, namely:

• the material was sensitive and relevant to the proceedings (and, as such disclosable subject to any public interest immunity (PII) claim), and
• a declaration for a closed material procedure (CMP) in the proceedings was in the interests of the fair and effective administration of justice.

The Court of Appeal also considered CMP principles under Part 82 of the CPR including its being:

• a remedy of last resort -- here, public interest immunity (PII), private hearings and/or confidentiality rings were found not be appropriate alternatives
• the need to balance protecting the interests of national security with article 6 of the European Convention on Human Rights (ECHR, Article 6)
• the steps to be taken after a section 6 declaration had been made, including case management directions and the obligation to review and, where appropriate, revoke any such declaration).

In coming to its decisions on these two separate appeals, the court took into account various leading authorities including Bank Mellat, Al Rawi and Mohammed.

These two appeals are of interest considering, as they do, the meaning and application of the relatively young and untested Justice and Security Act 2013 (JSA 2013).

As Lord Justice Richards observed, this Act authorises, 'in defined circumstances for the protection of national security', 'a serious departure from the fundamental principles of open justice and natural justice'.

However, given 'appropriate safeguards against inappropriate or excessive use of a closed material procedure are built into the provisions themselves, starting with the conditions for a section 6 declaration and encompassing the provisions for review and revocation of a declaration' and the defined conditions for its exceptional and rare use, Richards LJ considered there was 'no reason to give the statutory provisions a narrow or restrictive construction ... the provisions should be given their natural meaning and be applied accordingly'.

That said, the 'absolute protection' afforded to material which would be damaging to the interests of national security afforded under CPR 82.14(7) must be balanced against the rights under Article 6 of the European Convention on Human Rights (ECHR, Article 6).

In upholding the lower courts’ section 6 declarations, the Court of Appeal found, among other things:

• the relevant material was sensitive
• the relevant material would, subject to any claim for PII, be required to be disclosed
• PII would not be a satisfactory alternative to a section 6 declaration
• a section 6 declaration should be made in the interests of the fair and effective administration of justice because the case could not be effectively and justly determined without the relevant material

Some practical implications arising from these judgments include:

• consider the distinction between public interest immunity (PII) and closed material procedures (CMP)
• ensure you can demonstrate to the court the extent to which you have considered using alternatives and why they would not be appropriate and/or offer adequate protection in your case
• be aware of the practical difficulties in CMPs including the difficulties faced by special advocates in testing the evidence that emerges in the CMP
• a section 6 declaration can be made where the court considers the two conditions are met in relation to any disclosable material (McGartland, para 47(iii) applying JSA 2013, section 6(6)
• ensure any material in a section 6 declaration application is clear and served promptly
• consider carefully the relevance and disclosability of the material sought to be protected (Tweed v Parades Commission for Northern Ireland [2006] UKHL 53)

Further details

Subscribers to LexisPSL Dispute Resolution can find more details here including further case analysis additional practical implications arising from these cases. If you are not a subscriber you can click here for a free trial to access.