Al Rawi and Others v The Security Service and Others: SC 13 Jul 2011

The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the public under a closed material procedure. It argued that whilst the need for a fair trial was absolute, a closed procedure may be occasionally necessary in order to achieve a fair result, and that the Public Interest Immunity procedures were not suitable in this situation.
Held: The Security Service’s appeal failed (Mance, Hale, Clarke LL dissenting). There is no power at common law to replace public interest immunity, where a judge decides whether in the public interest certain material should be excluded from a hearing, with a closed material procedure. Such a fundamental change undermining a claimant’s rights to an open and fair hearing could only be introduced if at all by Parliament: ‘The common law principles . . are extremely important and should not be eroded unless there is a compelling case for doing so. If this is to be done at all, it is better done by Parliament after full consultation and proper consideration of the sensitive issues involved.’
Lord Dyson said: ‘no form of closed material procedure can properly be described as a development of the common law of PII, although there is no objection to the use of special advocates to enhance the PII process (see para 49 below). In many ways, a closed procedure is the very antithesis of a PII procedure. They are fundamentally different from each other. The PII procedure respects the common law principles to which I have referred. If documents are disclosed as a result of the process, they are available to both parties and to the court. If they are not disclosed, they are available neither to the other parties nor to the court. Both parties are entitled to full participation in all aspects of the litigation. There is no unfairness or inequality of arms. The effect of a closed material procedure is that closed documents are only available to the party which possesses them, the other side’s special advocate and the court.’
Orse Al-Rawi and Others v The Security Service and Others (JUSTICE intervening)

Lord Phillips, President, Lord Hope, Deputy President, Lord Rodger, Lady Hale, Lord Brown, Lord Mance, Lord Kerr, Lord Clarke, Lord Dyson
[2011] UKSC 34, UKSC 2010/0107, [2011] UKHRR 931, [2012] 1 All ER 1, [2011] 3 WLR 388, [2012] 1 AC 531
Bailii, Bailii Summary, SC, SC Summary
England and Wales
At First InstanceAl Rawi and Others v The Security Service and Others QBD 18-Nov-2009
The claimants sought damages from the defendants saying that they had been held and ill treated at various detention centres by foreign authorities, but with the involvement of the defendants. The defendants sought to bring evidence before the court . .
Appeal fromAl Rawi and Others v The Security Service and Others CA 4-May-2010
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory . .
CitedRegina v Lee 1998
(High Court of Australia) The court considered the operation of the hearsay rule, saying: ‘The rule’s operation requires consideration first of why it is sought to lead evidence of something said or done out of Court (a previous representation). . .
CitedRex v Sussex Justices, Ex parte McCarthy KBD 9-Nov-1923
Clerk wrongly retired with Justices
There had been a prosecution before the lay magistrates for dangerous driving. Unknown to the defendant and his solicitors, the Clerk to the Justices was a member of the firm of solicitors acting in a civil claim against the defendant arising out of . .
CitedKanda v Government of the Federation of Malaya PC 2-Apr-1962
A police Inspector had been dismissed on a finding of an offence against discipline. . He complained that he had not been allowed to see the report of the Board of Inquiry which contained prejudicial material and which had been relied upon by the . .
CitedAttorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .
CitedHome Office v Tariq SC 13-Jul-2011
(JUSTICE intervening) The claimant pursued Employment Tribunal proceedings against the Immigration Service when his security clearance was withdrawn. The Tribunal allowed the respondent to use a closed material procedure under which it was provided . .
CitedDuke of Dorset v Serjeant Girdler 1720
A man who is in possession of a fishery, may bring a bill to examine his witnesses in perpetuam rei memoriam, and establish his right, though he has not recovered in affirmance of it at law ; secus, if he is not in possession. In a civil trial: ‘the . .
CitedConnelly v Director of Public Prosecutions HL 1964
Plea of Autrefois Acquit is Narrow in Scope
The defendant had been tried for and acquitted of murder. The prosecution then sought to have him tried for robbery out of the same alleged facts. The House considered his plea of autrefois convict.
Held: The majority identified a narrow . .
CitedSecretary of State for the Home Department v AHK and Others (Practice Note) CA 2-Apr-2009
Sir Anthony Clarke MR gave guidance as to the circumstances in which a special advocate could be appointed, describing the roles of the special advocate representing a party who is not allowed to see closed material: ‘They are well understood and . .
CitedMohamed, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 10-Feb-2010
The claimant had sought discovery and publication of materials supplied to the defendant by US security services which, he said, would support his allegations that he had been tortured by the US and that this had been known to the defendant.
CitedCarnduff v Inspector Rock and Chief Constable West Midlands Police CA 11-May-2001
The claimant was a police informer. Over several years he had given and been paid for information. He claimed that on one occasion he had given information which had led to the arrest of a major criminal, but the police denied that any information . .
CitedA and others v HM Treasury; G v HM Treasury CA 30-Oct-2008
The Treasury appealed against an order quashing its own 2006 Orders, giving effect to the obligations on the United Kingdom as a member of the United Nations to ensure that the assets of an individual designated by the UN were to be subject to . .
CitedScott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
CitedRegina v Davis HL 18-Jun-2008
The defendant had been tried for the murder of two men by shooting them at a party. He was identified as the murderer by three witnesses who had been permitted to give evidence anonymously, from behind screens, because they had refused, out of fear, . .
CitedSecretary of State for the Home Department v MB; Same v AF HL 31-Oct-2007
Non-derogating control orders – HR Compliant
MB and AF challenged non-derogating control orders made under the 2005 Act, saying that they were incompatible with their human rights. AF was subject to a curfew of 14 hours a day, wore an electronic tag at all times, could not leave a nine square . .
CitedAsiatic Petroleum Co Ltd v Anglo-Persian Oil Co Ltd CA 1916
The court refused to order the production in litigation of a copy of a letter written by the defendants to their agents in Persia containing confidential information from the Admiralty as to the progress of the campaign in Persia during the First . .
CitedAndre Paul Terence Ambard v The Attorney General of Trinidad and Tobago PC 2-Mar-1936
(Trinidad and Tobago) Lord Atkin said: ‘Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.’ . .
CitedRegina v Davis (Iain); Regina v Ellis, Regina v Gregory, Regina v Simms, Regina v Martin CACD 19-May-2006
The several defendants complained at the use at their trials of evidence given anonymously. The perceived need for anonymity arose because, from intimidation, the witnesses would not be willing to give their evidence without it.
Held: The . .
CitedRoberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .
CitedDepartment of Economic Policy and Development of City of Moscow and Another v Bankers Trust Company and Another CA 25-Mar-2004
The word ‘private’ in rule 39.2 means the same as ‘secret’. Lord Justice Mance said: ‘It may be equated with the old ‘in camera’ procedure, rather than the old ‘in chambers’ procedure.’ Privacy and confidentiality are features long assumed to be . .
CitedIn Re K (Infants) CA 2-Jan-1963
The court discussed the need for those appearing before tribunals to be given sufficient access to all the material placed before the judge. Upjohn LJ said: ‘It seems to be fundamental to any judicial inquiry that a person or other properly . .
CitedRegina v H; Regina v C HL 5-Feb-2004
Use of Special Counsel as Last Resort Only
The accused faced charges of conspiring to supply Class A drugs. The prosecution had sought public interest immunity certificates. Special counsel had been appointed by the court to represent the defendants’ interests at the applications.
CitedRegina v Shayler HL 21-Mar-2002
The defendant had been a member of the security services. On becoming employed, and upon leaving, he had agreed to keep secret those matters disclosed to him. He had broken those agreements and was being prosecuted. He sought a decision that the . .
CitedConway v Rimmer HL 28-Feb-1968
Crown Privilege for Documents held by the Polie
The plaintiff probationary police constable had been investigated, prosecuted and cleared of an allegation of theft. He now claimed damages for malicious prosecution, and in the course of the action, sought disclosure of five documents, but these . .
CitedSecretary of State for the Home Department v Rehman HL 11-Oct-2001
The applicant, a Pakistani national had entered the UK to act as a Muslim priest. The Home Secretary was satisfied that he was associated with a Muslim terrorist organisation, and refused indefinite leave to remain. The Home Secretary provided both . .
CitedRegina v Chief Constable of West Midlands Police Ex Parte Wiley; Other Similar HL 14-Jul-1994
Statements made to the police to support a complaint against the police, were not part of the class of statements which could attract public interest immunity, and were therefore liable to disclosure.
Lord Woolf said: ‘The recognition of a new . .
CitedRegina v Keane CACD 15-Mar-1994
Public Interest Immunity Certificates for the protection of informants must be used only carefully. The Crown must specify the purpose of the public interest immunity certificate. The principles on disclosure in Ward are not limited to scientific . .
CitedBalfour v Foreign and Commonwealth Office CA 10-Dec-1993
A judge may choose not to inspect the documents behind a Public Interest immunity certificate if that certificate had been given for reasons of National Security. The court must always be vigilant to ensure that public interest immunity of whatever . .
CitedAir Canada v Secretary of State for Trade HL 1983
The court considered the test to be applied before a document could be ordered to be discovered.
Held: (Majority) Discovery is an exception to the adversarial character of the legal process. It assists both the parties and the court to . .
CitedDuncan v Cammell, Laird and Company Limited (Discovery) HL 27-Apr-1942
Relatives of deceased seamen claimed damages against the defendants after their husbands were lost a sea in a submarine built by the defendants. The Ministry of Defence instructed the defendants not to disclose any details of the boat’s . .
CitedKuddus v Chief Constable of Leicestershire Constabulary HL 7-Jun-2001
There is no rule of law preventing the award of exemplary damages against police officers. The fact that no case of misfeasance in public office had led to such awards before 1964, did not prevent such an award now. Although damages are generally . .
CitedRegina v Lewes Justices ex parte Secretary of State for the Home Department; Rogers v Home Secretary HL 1972
The House considered a claim for public interest immunity.
Held: Lord Simon of Glaisdale said: ‘the public interest which demands that the evidence be withheld has to be weighed against the public interest in the administration of justice that . .
CitedScience Research Council v Nasse; BL Cars Ltd (formerly Leyland Cars) v Voias HL 1-Nov-1979
Recent statutes had given redress to anyone suffering unlawful discrimination on account of race sex or trade union activities. An employee sought discovery of documents from his employer which might reveal such discrimination.
Held: The court . .

Cited by:
CitedDurham County Council v Dunn CA 13-Dec-2012
The claimant wished to begin a claim alleging historic sexual abuse while he had been at an institution run by the defendants. The claimant sought pre-trial disclosure of various documents and the court now considered the principle applicable, and . .
CitedBank Mellat v Her Majesty’s Treasury (No 1) SC 19-Jun-2013
Closed Material before Supreme Court
Under the 2009 order, the appellant Bank had been effectively shut down as to its operations within the UK. It sought to use the appeal procedure, and now objected to the use of closed material procedure. The Supreme Court asked itself whether it . .
CitedLumsdon and Others, Regina (on The Application of) v Legal Services Board Admn 20-Jan-2014
Four barristers challenged, by a judicial review, a decision by which the LSB approved an application proposed by the BSB jointly with two other approved regulators, the SRA and IPS, to introduce the Quality Assurance Scheme for Advocates . .
CitedBritish Sky Broadcasting Ltd, Regina (on The Application of) v The Central Criminal Court and Another Admn 21-Dec-2011
The claimant challenged a production order made by the magistrates in respect of journalists’ material. They complained that the application had used secret evidence not disclosed to it, and that the judge had not given adequate reasons to support . .
CitedBritish Sky Broadcasting Ltd, Regina (on The Application of) v The Commissioner of Police of The Metropolis SC 12-Mar-2014
The court was asked as to the powers of Magistrates hearing an application for a search warrant to receive excluded or special procedure material which had not been disclosed to the respondent. The court had overturned an order made by the district . .
CitedA v British Broadcasting Corporation (Scotland) SC 8-May-2014
Anonymised Party to Proceedings
The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported . .
CitedHaralambous v St Albans Crown Court and Another Admn 22-Apr-2016
This judicial review raised for express decision whether a person whose premises have been searched and whose property seized under a search warrant must have enough information grounding the warrant to judge its lawfulness and the retention of the . .
CitedHaralambous, Regina (on The Application of) v Crown Court at St Albans and Another SC 24-Jan-2018
The appellant challenged by review the use of closed material first in the issue of a search warrant, and subsequently to justify the retention of materials removed during the search.
Held: The appeal failed. No express statutory justification . .
CitedImam, Regina (on The Application of) v The London Borough of Croydon (Anonymity request) Admn 26-Mar-2021
Anonymity Not Necessary under CPR 3.92.
Judgment on the Claimant’s application for an order under CPR 39.2(4) that her name be anonymised in these proceedings by the use of a cipher and that restrictions should be imposed on the reporting of her identity. She said that publication of her . .
CitedBelhaj and Another v Director of Public Prosecutions and Another SC 4-Jul-2018
Challenge to decision not to prosecute senior Intelligence Service officials for alleged offences in connection with his unlawful rendition and mistreatment in Libya. The issue here was whether on the hearing of the application for judicial review, . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Media

Updated: 01 November 2021; Ref: scu.441627