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Informants and the Justice and Security Act 2013: when government hoists the neither confirm, nor deny flag, the court should not automatically salute it

November 12, 2015

The Court of Appeal in McGartland v Secretary of State for the Home Department [2015] EWCA Civ 686 has recently considered procedural issues arising out of a civil claim brought by the well-known informant Martin “Marty” McGartland against the Security Service for alleged breach of promise and negligence arising out of the way “arrangements” for his re-settlement in England were managed after “his cover was blown” and the IRA kidnapped him. The account of his work, capture and escape has been the subject of a book and film both entitled “Fifty Dead Men Walking”.

In defending the proceedings, the Government adopted the policy of “Neither Confirm Nor Deny” (NCND) and filed a limited defence. Following the introduction of the Justice and Security Act 2013 (the 2013 Act) an application was made by the claimant to require the defendant to plead a full defence and the defendant applied for a declaration under s 6 of the 2013 permitting closed material applications in the proceedings.

The applications were heard together and involved the court sitting in part in closed session. The claimant had argued that the entitlement of the defendant to rely on NCND should be decided before the application under s 6 was determined. The judge, Mitting J, disagreed. On the appeal the court considered whether the judge was wrong, the claimant arguing, amongst other things, that had the NCND issue been resolved first and in his favour, it would have led to the defendant being required to file a full open defence and equipped the court to form a proper assessment as to whether the conditions set out in s 6 were made out.

There was a closed session on the appeal but the Court of Appeal recognising the need to avoid a closed judgment if possible delivered an open judgment only.

The court began by setting out the detailed provisions of the 2013 Act. Section 6 provides for two conditions that must be satisfied before a declaration may be made. The first is a requirement on a party to disclose sensitive material to another person (whether or not another party to the proceedings) or, but for a possible claim for public interest immunity in relation to the material, a requirement by a party to make such disclosure: s 6(4). The second is that it is in the interests of the fair and effective administration of justice in the proceedings to make the declaration: s 6(5). Sensitive material is material the disclosure of which would be damaging to the interests of national security: s 6(11).

There is a mandatory requirement to keep the declaration under review: s 7 and for the making of rules of court: s 8. The definition of s 6 proceedings is extended to include “proceedings on, or in relation to, an application for a declaration under section 6…”: s 11(4)

The rules of court are found in Part 82 of the Civil Procedure Rules. Rule 82.6(1) provides for a closed hearing (where a party and their legal representative may be excluded, as opposed to a hearing in private). There are provisions for the appointment of a special advocate in Part 82.9 and 82.10. A special advocate must be appointed where there is an application to withhold sensitive material and the sensitive material must be served on him or her and a statement of the reasons why the material is being withheld: Part 82.13. Where the court considers disclosure of the material would be damaging to the interests of national security it has no discretion about whether to order the material is withheld, it must do so: Part 82.14(10).

The material before the judge at first instance included the pleadings and “a body of documents relied on by the claimants in support of their argument that there was no basis for the defendant’s reliance on NCND in the circumstances of this case”. It also included a signed statement by the Secretary of State in support of the application for a declaration under s 6. This was not materially different to previous statements in support of the continued observance of the policy, including, “where an individual makes allegations about operational matters, regardless of the veracity of those allegations, they can be very damaging to national security. Irrespective of [their] truth the [intelligence] agencies will neither confirm nor deny the truth of such allegations”. The judge also had a closed statement from the Minister.

The judge declined to accede to the claimant’s application to deal with the issue of NCND first. This was for a number of reasons, both “pragmatic and principled” including, the absence of any statutory procedure to consider the claimant’s application in light of the closed material, which he held had the potential to affect the eventual decision he was being asked to make. He rejected the claimant’s argument that the extended definition applied to the application to require the defendant to file an open defence other that one based on open material. Practically, there was no other option; vetting the claimant’s lawyers would take time and it was not straightforward that the claimant could be trusted with sensitive material. These difficulties would make any procedure, even if attainable, cumbersome. It would not, in any event, satisfy the need to protect the sensitive material. The judge was satisfied the conditions in s 6 were met and held it was “better to embark on the section 6 process now and to deal with the difficulties which I creates to the fair trial of the issues by the process of review and use of the techniques afforded by section 8(3)”.

On the appeal, there was alignment between the claimant’s counsel and the special advocate appointed to deal with the closed part of the proceeding. It was submitted that on the basis of the closed material before the judge on the application, it was not open to the judge to make the order. A private hearing could have managed the defendant’s concerns.

The defendant’s position on the appeal was that there was no proper basis for interfering with the judge’s decision, which remained a case management decision. It was conceded there was merit in the claimant’s NCND argument but it was proper for the judge to conclude the s 6 conditions were met. The 2013 Act represented “a legislative balance”. A declaration “opens the door to consideration of all closed material relied on but does not determine the outcome”.

The Court of Appeal recognised that a closed material procedure is “a serious departure from the fundamental principles of open justice and natural justice” but one permitted by Parliament. Its legal context was clearly set out by Lord Neuberger in Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 38 (at paragraphs 2 to 8). Parliament had assessed how the balance in civil proceedings was to be struck between open and natural justice on the one hand and the protection of national security on the other. It was required to be Article 6 compliant and safeguards were built in to prevent inappropriate or excessive use of the procedure. However, it would be reasonable to expect the procedure to be used rarely in light of its exceptional nature.

In order to assess the issue, it was necessary to consider the claimant’s submissions on NCND first. These included, reliance on NCND to avoid filing a full open defence is not automatic. It has to be justified on public interest grounds and a decision for the court. Reference was made to the well known Northern Ireland High Court decision In re: Scappaticci [2003] NIQB 56 (at paragraph 15) which sets out the rationale for NCND. However, reliance on NCND required justification analogous to public interest immunity claims, it was not, said the claimant’s counsel “simply a matter of a governmental party to litigation hoisting the NCND flag and the court automatically saluting it”. Baker v Secretary of State for the Home Department [2001] UKHRR 1275 recognised there were exceptions dictated by common sense. One of these was where there had been official confirmation from the state of the information that would otherwise be subject to NCND. The application of this principle could be seen in DIL v Commissioner of the Police of the Metropolis [2014] EWHC 2184 (QB) (at paragraphs 39 to 47).

The defendants did not dispute the principles derived from these cases. The problem for the claimants, said the Court of Appeal, was their application to the facts of the case. The position was less clear-cut than the claimant had suggested. There was a distinction between official confirmation of the claimant’s status as a police informant there was none relating to the pleaded assertion that he was an agent of the Security Service. The pleaded case clearly touched on issues relating to techniques and methodology. These matters all tended towards it being necessary for the court to adopt the closed material procedure.

As to the judge’s decision, the Court of Appeal held that he was wrong on the question of the extended definition but it was of limited significance since principled was outweighed by the pragmatic reasons for declining the application. The judge’s reasons and approach were all proper and fell within a case management decision that ought not to be interfered with. The submission of the special advocate that there was insufficient material upon which the judge could reach the decision he did was rejected.

The key practical points arising out of this judgment are:

–        NCND is a policy, not authority and needs to be justified in every case and where necessary it is for the court to determine whether it applies

–        Official confirmation of the information is likely to be a powerful reason for not applying the policy (see also the de Silva report into the murder of Patrick Finucane)

–        An application for the issue of NCND to be determined before the substantive application falls within the extended definition of an application for a declaration under s 11(4)

–        Applications under s 6 of the 2013 Act are likely to be rare in view of their exceptionality

–        The closed material procedure must be conducted in a manner that is compatible with Article 6, this includes the requirement to keep any declaration granted under review

© Simon McKay (2015). Please ask for my permission before using or copying the material contained on this blog. If you do attribute it to me with a link to the original content. This is opinion, not legal advice.

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