COURT OF APPEAL JUDGMENTS ON USE OF CLOSED MATERIAL PROCEDURE IN CIVIL LITIGATION

Posted on | by Anya Proops KC

On Tuesday of this week, the Court of Appeal handed down three important judgments on the question of how, in the context of civil litigation, courts should approach cases where the State is seeking to advance part of its case through a closed material procedure. The closed material procedure effectively operates to allow the State to put evidence and arguments before the court in closed session, which is to say in the absence of the other parties and their representatives. The excluded parties and their representatives will not be given access to any closed evidence or arguments. The procedure typically entails arrangements whereby the excluded parties will be represented in the closed session by a special advocate. All three appeals were decided by the same panel of judges, namely: Lord Neuberger MR, Maurice Kay LJ, Sullivan LJ. The following is a summary of the judgments:

HOME OFFICE v TARIQ [2010] EWCA Civ 462 – T had been employed by the Home office as an immigration officer. T’s brother and cousin had been arrested in relation to alleged terrorist offences. The cousin was convicted and the brother released without charge. T was suspended from duty due to national security concerns. T, who was a Muslim of Asian/Pakistani origin, went on to bring claims in the employment tribunal of race and religious discrimination. The tribunal held that it had statutory powers under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 to hear certain evidence relating to the claims in closed session, albeit that T would be represented in that session by a special advocate. The Employment Appeal Tribunal held that the decision to hear evidence in closed session was not unlawful but that T and his representatives should be informed of the gist of the closed material which was to be heard in the closed session. The Secretary of State appealed the decision that T should be told the gist of the closed material. T cross-appealed on the grounds that the convening of a closed session was itself unlawful under the European Directives from which his right to claim discrimination was derived and, further, under Art. 6 ECHR. The Court of Appeal, upholding the EAT’s judgment, held that: (a) the closed materials procedure, which entailed the use of a special advocate to represent T’s interests, did not contravene either the Directives or Art. 6 of the Convention; and (b) following Secretary of State for the Home Department v AF (No.3) [2009] UKHL 28, [2009] 3 WLR 74, T was entitled to know the gist of the closed material so that he could fairly and effectively pursue his claims.

 

BANK MELLAT v HM TREASURY [2010] EWCA Civ 483 – B was a bank which had been made subject to a direction under the Financial Restrictions (Iran) Order 2009. The order had been made pursuant to the Counter-Terrorism Act 2008. The Direction prohibited all persons operating in the financial sector from entering or participating in any transaction or business relationship with B. The basis of the Direction was that M ‘continued to engage in a pattern of conduct which supported and facilitated Iran’s proliferation-sensitive activities, that nuclear-related companies received funds from B, and that a company with alleged connections with other nuclear-related companies conducted business using B’. B sought to challenge the Direction under CPR 79. CPR 79 contains provisions allowing for a closed materials procedure to be adopted. T wished to treat certain evidence as closed evidence under the closed material procedure. B challenged T’s attempt to withhold the closed evidence from it. The High Court held that T was obliged under Art 6 of the Convention to afford B sufficient disclosure to enable it to give effective instructions about the essential allegations made against it. HELD: The Court of Appeal held that, where disclosure of evidence might be contrary to the public interest, Art 6 permitted a balancing exercise to be undertaken. However, in line with Tariq v Home Office, B should be given the gist of the information being withheld so that he could give effective instructions in relation to the case being put against him. The information provided to B had to be sufficient to enable B to give sufficient instructions not merely to deny, but actually to refute the essential allegations relied on by T.

 

BISHER AL RAWI & 5 ORS v SECURITY SERVICE & Ors [2010] EWCA Civ 482 – The appellants (X) appealed against a decision of the High Court that, as a matter of principle, it was open to the court to order a closed material procedure in the context of a civil claim for damages. X were former Guantanamo detainees. They had made various claims against the respondents (Y) including claims for damages for false imprisonment, trespass to the person, torture and negligence. Y invited the court to apply a closed material procedure which would enable them to rely on pleadings and evidence which would not be disclosed to X or their representatives, albeit that it would be disclosed to a special advocate representing X’s interests. Y argued that this approach was necessary in the public interest. X’s position was that it was not open to Y to use a closed material procedure and that its only option was to rely on the public interest immunity (PII) procedure. Under that procedure, any evidence which was subject to PII would be excluded altogether from the litigation process, which meant that neither party could rely upon it. Y argued that the closed material approach was preferable because the court would be more likely to arrive at a fair result if it could see the relevant material. HELD: The Court of Appeal, overturning the High Court’s judgment, held that it was not open to the court to order a closed material procedure in relation to the trial of an ordinary civil claim. The principle that a litigant should be able to see and hear all the evidence seen and heard by the court determining his case was so fundamental that, in the absence of parliamentary authority, no judge should override it in relation to an ordinary civil claim. The Court commented obiter that different considerations might apply where the proceedings did not only concern the interests of the parties but also had a significant effect on a vulnerable third party or the wider public interest. However, those considerations did not apply in the instant proceedings where the judge would be called upon to sit purely as an arbiter between the parties and no “triangulation of interests” would be involved.

 

What these judgments show collectively is just how difficult it is to strike a fair balance between the important public interest in protecting the basic rights of individuals to know what case is being put against them and the need to avoid disclosures which would themselves damage the public interest, for example, by jeopardizing national security. They also confirm that a distinction is to be drawn between those cases where there is a specific statutory or Parliamentary authority for a closed material procedure to be adopted (Tariq and Bank Mellat) and those cases where no such authority exists (Al Rawi). In respect of the latter cases, the Court of Appeal has effectively held that: (a) in general, the only procedural course available to the State is to make an application for evidence to be excluded under the PII procedure; although (b) there may be cases where exceptionally third party interests or the public interest warrant a different approach being adopted.

 

 

GOOGLE IN EUROPE – PRIVACY CONTROVERSIES CONTINUE

Posted on | by Anya Proops KC

In March 2010, we posted on a New York Times article which explored how Google’s quest to increase access to information via the internet appeared to be clashing with European privacy laws. The article followed in the wake of the prosecution in Italy of Google executives for violating Italian privacy laws after Google allowed a user to post a video showing an autistic boy being bullied. More recently, further controversies over Google’s record on privacy rights have emerged. First, privacy regulators from a number of different countries, including our own Information Commissioner, Christopher Graham, wrote a joint letter to Google’s chief executive and challenging him to improve protections for users, thereby highlighting concerns that Google is not doing enough to protect the privacy of users – see further this article in the Guardian dated 20 April 2010. Second, last week reports emerged that German regulators had renewed their criticism of Google’s Streetview when it emerged that Google was using the Streetview system to archive information about the location of household wireless networks – see this article in the New York Times dated 29 April 2010. What these developments suggest is that the clash between European social values and the expansion of Google’s techno-commercial empire is likely to continue for some time to come.

SAFETY RISK JUSTIFIES WITHHOLDING OF ANIMAL EXPERIMENT INFORMATION

Posted on | by Robin Hopkins

The ‘health and safety’ exemption under s. 38 FOIA has received relatively little attention at Tribunal level. It was recently relied upon successfully in People for the Ethical Treatment of Animals Europe (PETA) v IC & Oxford University (EA/2009/0076).

Experiments performed on a macaque by an Oxford University Professor had been featured in a BBC documentary in November 2006. The appellant pressure group sought extracts from the relevant project licence concerning, for example, the work plan and purposes behind those experiments. The Tribunal applied the well-established ‘prejudice’ principles from Hogan and Oxford City Council v IC (EA2005/0026 and EA2005/0030), ‘endanger’ (the term used in s. 38) being synonymous with ‘prejudice’. It found that s. 38 was engaged, given the indiscriminate nature of the violence tending to accompany the publication of information about animal experiments at Oxford.

In terms of the public interest test, notable points from the decision include:

a) PETA argued that the information would assist its decisions on applications for judicial review, but, based on Secretary of State for the Home Department v BUAV [2008] EWCA Civ 417, the Tribunal observed that there was limited scope for judicial second-guessing of scientists’ opinions.

b) The Tribunal accepted that limited external scrutiny was available, but was persuaded of the robustness of the internal scrutiny and oversight mechanisms applied here.

c) Oxford put forward a collateral public interest argument, namely that safety risks would deter future research, thereby impeding the advancement of scientific knowledge and human health. PETA argued that this was too remote from the health and safety risks for which s. 38 catered, but the Tribunal rejected this ‘remoteness’ objection (though it found this public interest factor to be inapplicable on these facts).

Given the frequency with which such points arise in appeals by pressure groups, these observations from the PETA case may come to have wider application.

LATE RELIANCE ON EXEMPTIONS ONLY TO BE ALLOWED IN “EXCEPTIONAL” CIRCUMSTANCES

Posted on | by Robin Hopkins

The Tribunal’s recent decision in Crown Prosecution Service v IC EA/2009/0077 concerned a request for information about the CPS’ deliberations on s. 58 of the Children Act 2004, which restricted the availability of the “reasonable punishment” defence to what would otherwise be a criminal assault by an adult on a child. The importance of this decision lies not so much in the fate of the requested information (in short: some was exempt, some was to be disclosed), but in the Tribunal’s approach to late reliance on FOIA exemptions.

The CPS initially relied on s. 35(1)(a) (formulation and development of government policy). Then, in its appeal to the Tribunal, it invoked s. 35(1)(b) (ministerial communications) and s. 42 (legal professional privilege). Finally, the CPS raised s. 40 (2) (personal data) for the first time during the Tribunal proceedings. The Tribunal allowed late reliance on ss. 40(2) and 42, but not s. 35(1)(b).

In so doing, it applied the principles set out in the Tribunal’s decision in Home Office & Ministry of Justice v IC EA/2008/0062. The crux of that decision was that late reliance should only be allowed in “exceptional” circumstances. The Home Office approach was not disapproved in the appeal to the High Court from that Tribunal decision ([2009] EWHC 1611 (Admin)) – but nor was it formally approved. The CPS decision, which was complete with detailed reasoning in support of Home Office, seems to have resolved lingering questions about the Tribunal’s approach to late reliance.

The Tribunal in CPS also considered whether the IC is under a duty to consider exemptions that are not raised by the public authority. Here it followed the approach from Bowbrick v. Nottingham City Council EA/2005/0006: in “exceptional” cases, the IC is “entitled” to look for an appropriate exemption. This did not extend to s. 42 in Bowbrick, nor did it in CPS.

PATIENT DATA SHARING – ARE WE RUNNING OUT OF PATIENCE?

Posted on | by Anya Proops KC

The question of the extent to which those working within the national health service should have access to patient data is a difficult one to resolve. On the one hand, permitting widespread access can potentially enable health service provides to provide more efficient, ‘joined up’ health-care to patients. On the other hand, there will always be concerns that too much access increases the risk that patient data, which is obviously sensitive personal data for the purposes of s. 2 of the Data Protection Act 1998, will be misused and/or inadvertently disclosed to third parties. We have seen this debate unfolding not least in respect of the Spine database project which is aimed at achieving a comprehensive centralised database of NHS patient records. The British Medical Association amongst others have alreeady expressed concern that the system is being rolled out too quickly (see further this article from the Guardian earlier this month). Today, reports are surfacing in the media that an NHS Trust in Wales is failing to ensure that proper restrictions are being placed on hospital staff accessing patient data (see further this BBC article which suggests hospital porters, IT staff and administrators have all been permitted access to patient data). This kind of story is only going to fuel concerns that the quest for efficiency in patient treatment requires too high a price to be paid in terms of compromising the privacy rights of patients.

USE OF SECRET EVIDENCE – NEW JOINT COMMITTEE ON HUMAN RIGHTS REPORT

Posted on | by Anya Proops KC

In an earlier post this month on the Al Rawi litigation, I reflected upon recent developments concerning the use of secret evidence in civil litigation. Yesterday, the House of Lords and House of Commons Joint Committee on Human Rights published its latest report on the human rights implications of UK counter-terrorism measures: Counter-Terrorism Policy and Human Rights (Seventeenth Report): Bringing Human Rights Back In. In its report, the JCHR expressed serious concerns about the growth in the use of secret evidence procedures within the judicial system and the Government’s apparent failure to apply the restrictive principles outlined in the Article 6 cases of A v UK [2009] 49 EHRR and Secretary of State v AF [2009] UKHL 28. The following paragraphs of the report are particularly worthy of note:

62. The Government’s response to the A and AF judgments suggest that it considers itself free to press on with the use of secret evidence and special advocates in the other contexts in which they are used, without pausing to take stock of the wider implications of these significant rulings. Although the Government says that it is considering whether changes to the Parole Board’s procedures are needed, we have not seen any evidence to suggest that the Government has in fact considered the implications of the judgment of the European Court of Human Rights in A v UK for all the other contexts in which special advocates and secret evidence are used. We recommend that the Government urgently conduct a comprehensive review of the use of secret evidence and special advocates, in all contexts in which they are used, in light of the judgments of the European Court of Human Rights and the House of Lords, to ascertain how often they are used and whether their use is compatible with the minimum requirements of the right to a fair hearing as interpreted in those judgments, and to report to Parliament on the outcome of that review.

 

64. We are not satisfied that the Minister’s answer meets the special advocates’ concerns about the difficulty of distilling the relevant principles from closed judgments, or about the necessary accessibility of the law. We recommend that the Government include arrangements for law reporting in the review of the use of secret evidence that we have recommended above.