Facts
- The case concerned civil claims brought against the Security Service involving allegations of complicity in torture.
- The government sought to use closed material procedures (CMPs), allowing disclosure of evidence only to the court and a special advocate, not to the claimants or their lawyers.
- CMPs are exceptional procedures enabling sensitive information to be withheld from a party in the interests of national security.
- The government relied heavily on evidence it wished to keep closed due to its sensitive nature.
- The claimants challenged the lawfulness of CMPs in civil proceedings in the absence of specific statutory authority.
Issues
- Whether the statutory framework permitted the use of closed material procedures in civil claims in the manner sought by the government.
- Whether the employment of CMPs in these circumstances was compatible with the principles of open justice and the right to a fair trial under Article 6 of the European Convention on Human Rights.
- Whether the use of CMPs could be justified as strictly necessary and proportionate to protect national security interests.
Decision
- The Supreme Court held that the existing statutory framework did not authorize the use of CMPs in the way the government proposed for these civil proceedings.
- The Court found that employing CMPs would undermine the principles of fairness and open justice, particularly in cases where evidence formed a significant part of the government's case.
- It held that derogations from open justice must be limited and justified by compelling reasons, and CMPs should only be used when strictly necessary.
- The judgment clarified that existing statutory provisions governing CMPs applied to specific, narrowly-defined categories of sensitive information and did not provide a general power to circumvent ordinary evidentiary rules.
- As a result of the decision, the government’s attempt to use CMPs in this context was rejected.
Legal Principles
- The principle of open justice is fundamental to the English legal system, requiring public, transparent proceedings to ensure public scrutiny and accountability.
- The right to a fair trial includes the individual’s ability to know and challenge the evidence against them.
- Departures from open justice, such as CMPs, can only be justified by compelling reasons and must be strictly necessary and proportionate.
- Statutory authority is required for any procedure that restricts the normal disclosure of evidence in civil trials.
- The judgment places the burden on those seeking to restrict open justice to demonstrate clear justification for doing so.
Conclusion
The Supreme Court in Al Rawi v Security Service significantly limited the use of closed material procedures in civil proceedings, reaffirming the primacy of open justice and procedural fairness. The case led to subsequent legislative reform but remains an authoritative statement on the limits of secret evidence and the judiciary’s duty to safeguard fair trial rights.
