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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> K & Ors, R (on the application of) v The Secretary of State for Defence & Anor [2016] EWCA Civ 1149 (23 November 2016) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2016/1149.html Cite as: [2016] WLR(D) 625, [2016] EWCA Civ 1149, [2017] 1 WLR 1671

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
THE RIGHT HONOURABLE LORD JUSTICE SIMON & THE HONOURABLE
MR JUSTICE OUSELEY

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/11/2016

FINAL OPEN JUDGMENT

Lord Justice Longmore:

Introduction

1. The proceedings underlying this procedural appeal have been brought by three Afghan claimants who assert that they were covert human intelligence sources ("CHIS") working for and providing intelligence to the defendants between 2008-2013. They assert further that the defendants had (or ought to have had) policies in relation to their protection, relocation and compensation once the International Security Assistance Force ("ISAF") withdrew from Afghanistan and that they fall (or ought to fall) within such policies and the defendants should therefore relocate them in Afghanistan and pay the costs of such relocation together with (unspecified) compensation for the disruption to their lives and risks to their safety. In support of their claims they have filed witness statements detailing their accounts (which the defendants neither confirm nor deny) of the history of their association with personnel of the Ministry of Defence ("MOD"), the threats (and thus the danger) to which they and their families have been exposed since British forces left and the continued risks and dangers to which they and their families are subject.
2. They also claim that their relationship with the defendants comes within the protections afforded by the European Convention of Human Rights ("the ECHR"), that the defendants have been in breach of Article 2 (right to life), Article 3 (prohibition of inhuman or degrading treatment) and Article 8 (right to respect for private and family life) and that they are entitled to compensation for such breaches. I shall refer to the claims so far mentioned as "the public law claims".
3. They have also made private law claims for breaches of an asserted common law duty of protection and breaches of asserted contracts of employment; there are also claims in negligence and claims for loss arising from representations said to have been made by the defendants in relation to the claimants' support and relocation. These common law claims have been stayed to await resolution of the public law claims and I will say little more about them.
4. The defendants say that the claims should be dismissed by reason (inter alia) of the difficulties arising from their "Neither Confirm nor Deny" policy in relation to intelligence sources but have obtained from the court a declaration pursuant to section 6 of the Justice and Security Act 2013 ("the 2013 Act") that sensitive material can be withheld from the claimants. Special advocates have been appointed to whom that material has been disclosed. The MOD has moreover carried out assessments of the three claimants. Those were presented to the court in closed witness statements (namely statements only available to the special advocates). Further witness statements were made by the claimants in response to a series of questions which led to further assessments from the defendants (again) in closed witness statements.
5. The Administrative Court fixed 17^th and 18^th November 2015 for what was hoped would be the substantive hearing of the public law claims but both the claimants and the special advocates wanted further disclosure. When the matter came before the Divisional Court on 17^th November it was said that, pursuant to section 14 of the 2013 Act, if Article 6 of the Convention applied, there would have to be further disclosure. That was therefore debated during that hearing at the end of which the defendants informed the claimants that they took the view that the claimants were not:-

"telling the truth in relation to material and core points of their claim [and] are apparently deliberately putting forward false evidence in order to secure the financial advantage and/or internal relocation sought."

That is currently the sum total of the defendants' open case although the detail behind it has been disclosed to the special advocates.

6. The complex procedural route to this destination is set out in detail in the open judgment of the Divisional Court to which reference may be made. That court ordered that there be no further disclosure because:-

i) the public law claims (which were the only claims, at this stage, before the court) did not constitute a claim to the "determination of civil rights and obligations" within Article 6 of the ECHR;

ii) they did not therefore fall within the ambit of the provision of the 2013 Act which required compliance with the obligations set out in Article 6 which might necessitate further orders of disclosure being made;

iii) there was no freestanding common law right to disclosure once the court had made a declaration under section 6 of the Act that sensitive material could be withheld from the claimants;

iv) the ECHR did not apply to the claims under Articles 2, 3 and 8 because they related to activities in Afghanistan outside the United Kingdom to which, by reason of Article 1(1) of the Convention, the ECHR did not apply; and

v) the fact that Article 6 would apply to claims made under Articles 2, 3 and 8 was therefore irrelevant.

7. Both Mr Tim Owen QC for the claimants and Mr Kieron Beal QC as the special advocate challenged the first 4 of those conclusions. They also submitted that there was insufficient material before the court to enable it to come to conclusion (iv) which they had, in any event, expected only to be determined at the substantive hearing.

The Legislative Background

8. In order to understand the ambit of these arguments it is necessary to set out the relevant parts of the 2013 Act.
9. Part 2 of the Act deals with disclosure of sensitive material. Section 6 enables a court seised of relevant civil proceedings to make a declaration that the proceedings are proceedings in which a closed material application may be made to the court and provides that the court may make such a declaration if (1) a party to the proceedings would be required to disclose sensitive material in the course of the proceedings to another person and (2) it is in the interests of the fair and effective administration of justice in the proceedings to make such a declaration. Section 7 deals with reviewing and revoking any declaration made under section 6 as follows:-

"(2) The court must keep the declaration under review, and may at any time revoke it if it considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings.

(3) The court must undertake a formal review of the declaration once the pre-trial disclosure exercise in the proceedings has been completed, and must revoke it if it considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings."

10. The current position in these proceedings is that on 6^th July 2015 Mitting J made a declaration pursuant to section 6 and on 8^th September he made an order that all the material so far disclosed by the defendants could be withheld. No sensitive material has therefore been disclosed to the claimants. The time for formal review of the declaration made under section 6 has not yet arrived because pre-trial disclosure will not yet have been completed if this court reverses the decision of the Divisional Court.
11. Section 8 of the Act makes provision for the determination of proceedings under section 6 by requiring rules of court to be made:-

"(1) Rules of court relating to any relevant civil proceedings in relation to which there is a declaration under section 6 ("section 6 proceedings") must secure –

(a) that a relevant person has the opportunity to make an application to the court for permission not to disclose material otherwise than to –

(i) the court,

(ii) any person appointed as a special advocate, and

(iii) where the Secretary of State is not the relevant person but is a party to the proceedings, the Secretary of State,

(b) that such an application is always considered in the absence of every other party to the proceedings (and every other party's legal representative),

(c) that the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security,

(d) that, if permission is given by the court not to disclose material, it must consider requiring the relevant person to provide a summary of the material to every other party to the proceedings (and every other party's legal representative),

(e) that the court is required to ensure that such a summary does not contain material the disclosure of which would be damaging to the interests of national security.

(2) Rules of court relating to section 6 proceedings must secure that provision to the effect mentioned in subsection (3) applies in cases where a relevant person –

(a) does not receive the permission of the court to withhold material, but elects not to disclose it, or

(b) is required to provide another party to the proceedings with a summary of material that is withheld, but elects not to provide the summary.

(3) The court must be authorised –

(a) if it considers that the material or anything that is required to be summarised might adversely affect the relevant person's case or support the case of another party to the proceedings, to direct that the relevant person –

(i) is not to rely on such points in that person's case, or

(ii) is to make such concessions or take such other steps as the court may specify, or

(b) in any other case, to ensure that the relevant person does not rely on the material or (as the case may be) on that which is required to be summarised."

12. Sections 9 to 13 then make other ancillary provisions and section 14 is an interpretation section which in sub-section (2) provides:-

"(2) Nothing in sections 6 to 13 and this section (or in any provision made by virtue of them)-

(a) restricts the power to make rules of court or the matters to be taken into account when doing so,

(b) affects the common law rules as to the withholding, on grounds of public interest immunity, of any material in any proceedings, or

(c) is to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the Human Rights Convention."

It is sub-section 2(c) on which the claimants rely in saying that their public law claims are civil proceedings within Article 6 and that, even at this stage, further disclosure ought to be given.

13. Rules of court have been made pursuant to section 8 and are contained in Part 82 of the Civil Procedure Rules. So far as material they provide:-

"Modification to the overriding objective

82.2 – (1) Where any of the rules in this Part applies, the overriding objective in Part 1, and so far as possible any other rule, must be read and given effect in a way which is compatible with the duty set out in paragraph (2).

(2) The court must ensure that information is not disclosed in a way which would be damaging to the interests of national security.

(3) Subject to paragraph (2), the court must satisfy itself that the material available to it enables it properly to determine proceedings"

14. Part 82.13 provides that sensitive material can only be withheld if the Secretary of State (or other relevant person) makes application for it to be withheld. Part 82.14 then makes detailed provisions for the consideration of such applications in the absence of the specially represented party (namely the party whose interests are represented by a special advocate (here the claimants)). Those provisions include the following:-

"(7) Where the court gives permission to the relevant person to withhold sensitive material, the court –

(a) must consider whether to direct the relevant person to serve a summary of that material on the specially represented party and the specially represented party's legal representative; but

(b) must ensure that any such summary does not contain material the disclosure of which would be damaging to the interests of national security.

(8) If the court is satisfied that –

(a) the relevant person does not intend to rely on sensitive material, and

(b) that material does not adversely affect the relevant person's case or support the case of another party to the proceedings,

the court may direct that the relevant person must not rely in the proceedings on that material, without the court first requiring the relevant person to serve a summary of that material on the specially represented party and the specially represented party's legal representative.

(9) Where the court has not given permission to the relevant person to withhold sensitive material from, or has directed the relevant person to serve a summary of that material on, the specially represented party and the specially represented party's legal representative –

(a) the relevant person shall not be required to serve that material or summary; but

(b) if the relevant person does not do so, at a hearing on notice the court may –

(i) if it considers that the material or anything that is required to be summarised might adversely affect the relevant person's case or support the case of another party to the proceedings, direct that the relevant person is not to rely on such points in the relevant person's case, or that the relevant person makes such concessions or takes such other steps as the court may direct; and

(ii) in any other case, direct that the relevant person must not rely in the proceedings on that material or (as the case may be) on what is required to be summarised.

(10) The court must give permission to the relevant person to withhold sensitive material where it considers that disclosure of that material would be damaging to the interests of national security."

15. The requirement in Part 82.14(7) that, when the court gives permission for sensitive material to be withheld, it must consider whether to direct that a summary of that material be served on the specially represented party and his legal representative was complied with by Mitting J in the present case when on 8^th September 2015 he permitted sensitive material to be withheld but in compliance with Part 82.14(7)(b) and 82.14 (10) he considered that any summary would be damaging to the interests of national security. That decision has not been appealed and it is further accepted that the same thinking applies to the further assessments that were made after K, A and B had provided further evidence in response to a series of questions ordered by Mitting J to be sent to them. It is in these circumstances that the claimants have sought to rely on section 14(2)(c) of the 2013 Act and assert that, since nothing in the Act or the Civil Procedure Rules is to be read as requiring a court to act in a manner inconsistent with Article 6 of the ECHR, disclosure of the sensitive material (or at least, an accurate summary) is required so that the claimants can know what case they are to meet. As is well known Article 6 provides:-

"In the determination of his civil rights and obligations…. everyone is entitled to a fair and public hearing… by an independent and impartial tribunal established by law"

It is said that a hearing in which the details of the MOD's case (as opposed to the broad and unparticularised assertion set out in para. 5 above) are not known to the claimants cannot be a fair and public hearing.

16. In this connection reliance is placed on the analogy of defendants against whom applications for control orders are made. In Secretary of State for the Home Department v AF (No. 3) [2010] 2 AC 269 it was determined that the potential controlee must be:-

"given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations,"

Lord Phillips then added at para. 59:-

"Provided this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or sources of the evidence forming the basis of the allegations. Where, however, the open material consists purely of general assertions and the case against the controlee is based solely or to a decisive degree on closed materials the requirement of a fair trial will not be satisfied, however cogent the case based on the closed materials may be."

17. It is, therefore, necessary to decide whether the resolution of the public law claims brought by the claimants constitutes the determination of their "civil rights". Those claims assert that there was (or ought to have been) a policy of the MOD to protect any CHIS after they ceased to be CHIS. Mr Owen faced the difficulty that, since the MOD could neither confirm nor deny whether the claimants were CHIS, nor whether CHIS were deployed in Afghanistan, nor the existence of any policy relating to CHIS in Afghanistan, there was no open evidence that any such policy existed. There was an "Intimidation Policy" which applied to Locally Engaged Staff but the claimants could produce no evidence of any contract of employment and, in any event, any breach of any such contract was part of the private claims, currently stayed. Mr Owen therefore left the substantial argument to be made by Mr Beal.
18. Although the open judgment of the Divisional Court does not expressly say so, it seems that they rejected the claimants' open argument on the basis that a claim for protection based on the application of an unknown policy or on the assertion that there should have been a policy to protect the claimants was not a claim for determination of a civil right because any assessment pursuant to any such policy would be based on both an evaluative judgment and the exercise of discretion without any right to any particular outcome; the case was thus distinguishable from the decision of the European Court of Human Rights in Ali v United Kingdom [2015] H.L.R. 872 39 where a defined outcome existed for accommodation to be provided to a homeless person, once qualifying conditions were met. That did constitute a civil right whereas a purely discretionary decision about relocation was not.
19. For reasons more fully developed in the closed part of this judgment, which to some extent depend on the Strasbourg's Court disagreement with the Supreme Court's decision in Ali v Birmingham City Council [2010] 2 AC 39, I cannot accept that the Divisional Court was right about this. Mr Watson accepted, in my view correctly, that the fact that any claim would depend on a failure to comply with the terms of a policy, rather than of legislation, was not in itself a reason why it could not involve the determination of a civil right. If a policy for relocation of CHIS ought to have been in place (which is the basis of the claim) any such policy would contemplate that, if appropriate conditions were satisfied, there would be an outcome of some kind. It might or might not be relocation; it might or might not give rise to compensation of some kind; it might result in the MOD doing nothing for a CHIS at all if there were good reasons for so doing. These are sufficiently defined outcomes for the court to be able to assess, on public law principles, whether any assessment had been lawfully conducted.
20. Mr Watson for the MOD did not argue that the court was bound to follow the Supreme Court in Ali (rather than the decision of the Strasbourg Court) on the principles of Kay v Lambeth London Borough Council [2006] 2 AC 465. In my opinion he was right not to do so partly because decisions about homelessness are too far removed from decisions about compensation for CHIS to render Ali a binding precedent for the latter cases but also because the concept of a "civil right" is an autonomous phrase in Article 6 of the Convention and the Strasbourg Court is the ultimate arbiter of the meaning of such phrases. In R (Hicks) v Commissioner of Police of the Metropolis [2014] 1 WLR 2152 Maurice Kay LJ addressed the question in the first 4 principles of para. 80 of his judgment;-

"(1) It is the duty of the national courts to enforce domestically enacted Convention rights.

(2) The ECtHR is the court that, ultimately, must interpret the meaning of the Convention.

(3) The UK courts will be bound to follow an interpretation of a provision of the Convention if given by the Grand Chamber as authoritative…

(4) The same principle… applies to a "clear and constant" line of decisions of the ECtHR other than the Grand Chamber.

I therefore need say no more on the question of precedent.

21. For these reasons I would conclude that the resolution of the public law claim does constitute a determination of the claimants' civil rights and that there will have to be whatever disclosure is necessary for the claimants to have the "fair hearing" to which Article 6 entitles them. If such disclosure cannot be agreed, the case will have to be remitted to the Divisional Court for further hearing.
22. In these circumstances there is no reason to consider Mr Owen's submission that there is a free standing right of disclosure. I will only say that, in the light of the terms of the 2013 Act, that submission is most unlikely to be correct.

Application of ECHR

23. In these circumstances it may not be strictly necessary to determine whether Articles 2, 3 and 8 of the ECHR apply. Indeed both Mr Owen and Mr Beal submitted that the court should not do so but leave that to be determined at the trial rather than at this stage. The matter was, however, fully argued and it will be beneficial for both the parties and the future course of these proceedings for the matter to be decided and for the parties to know where they stand.
24. Article 1 of ECHR provides:-

"The high contracting parties shall secure to everyone within their jurisdiction the rights and freedoms defined in section 1 of this Convention."

The question therefore is whether K, A and B were "within the jurisdiction" of the United Kingdom when the alleged breaches of Articles 2, 3 and 8 occurred. It was established in the cases culminating in Al-Skeini v United Kingdom (2011) 53 EHRR 18 (as explained in Al-Saadoon v Secretary of State for Defence [2016] EWCA Civ 811 paras 18-23 and 38) that, if persons are taken into custody of UK forces abroad, such persons have rights under the Convention particularly the right to life and the right not to be tortured or subjected to inhuman or degrading treatment. In that case the Grand Chamber re-affirmed that, while a state's jurisdictional competency under Article 1 is primarily territorial and will normally be exercisable only in the state's territory, extra-territorial acts can, in exceptional cases, constitute an exercise of jurisdiction within Article 1. It identified three categories of such case:-

i) state agent authority and control;

ii) effective control over an area; and

iii) a category described as "espace juridique" designed to ensure that, if one Convention state is occupied by the armed forces of another, the occupying state should be accountable for breaches of human rights within the occupied territory.

25. Neither the second nor the third category is applicable in the present case since UK forces did not have effective control over Helmand at the relevant time and Afghanistan is not itself a Convention state.
26. The first category is, therefore, the relevant one. The Grand Chamber divided this category into three sub categories:-

i) acts of diplomatic and consular agents;

ii) the exercise of public powers; and

iii) the exercise of physical power and control over individuals.

Of these sub-categories, numbers (i) and (iii) are inapplicable inasmuch as there is no question of any act of diplomatic or consular agents and it cannot be suggested that the claimants were subject to the exercise of physical power and control because even on their own case they were at all times free to decide whether to assist the UK authorities or not. Even if they had initially agreed to do so, they could stop at any time.

27. The relevant (second) sub-category is therefore that of the exercise of public powers. For the claimants it was asserted that the MOD was exercising public powers in seeking and receiving the services of CHIS. In relation to this sub-category the Grand Chamber said at paragraphs 135-136:-

"135. Secondly, the Court has recognised the exercise of extra-territorial jurisdiction by a contracting state when, through the consent, invitation or acquiescence of the government of that territory, it exercises all or some of the public powers normally to be exercised by that government. Thus where, in accordance with custom, treaty or other agreement, authorities of the contracting state carry out executive or judicial functions on the territory of another state, the contracting state may be responsible for breaches of the Convention thereby incurred, as long as the acts in question are attributable to it rather than to the territorial state."

28. It can be seen at once how far removed the considerations in the above paragraphs are from the facts asserted by the claimants in the present case. No doubt UK forces were in Helmand with the agreement of the Afghan government, but they were certainly not exercising judicial functions nor, in my view, were they exercising executive functions in relation to the services of any CHIS (whose engagement the defendents neither confirm nor deny). If an army on the ground in hostile territory were to recruit CHIS to assist them in their task, that would be very different from a state-run agency such as MI5 or MI6.
29. I therefore conclude that the claimants were not (even on their own case) within the jurisdiction of the United Kingdom when the alleged breaches of Articles 2, 3 and 8 occurred and their public law claim is therefore limited to the policy ground described above.
30. Overall conclusion

I would, therefore, allow this appeal on the point that Article 6 is applicable to require further disclosure in principle and would remit the case to the Divisional Court if such further disclosure cannot be agreed.

Lord Justice Treacy:

31. I agree.

Lord Justice Underhill:

32. I agree also.

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

THE RIGHT HONOURABLE LORD JUSTICE SIMON & THE HONOURABLE

MR JUSTICE OUSELEY

BEFORE: THE RIGHT HONOURABLE LORD JUSTICE LONGMORE THE RIGHT HONOURABLE LORD JUSTICE TREACY
THE RIGHT HONOURABLE LORD JUSTICE UNDERHILL BETWEEN:

	THE QUEEN ON THE APPLICATION OF K & ORS	Appellants
	and –
	THE SECRETARY OF STATE FOR DEFENCE & ANR	Respondents
	____________________ DRAFT ORDER ____________________

ON THE APPEAL by the Appellants K, A and B against the Order of the Divisional Court dated 23 November 2016

AND UPON HEARING Leading Counsel for the Appellants and Counsel for the Respondents

IT IS HEREBY ORDERED THAT:

1. The Appellant's appeal in relation to Article 6 ECHR be allowed;

2. The proceedings be remitted to the Divisional Court for a directions hearing to be listed on an expedited basis on the first available date from 5 December 2016 with a time estimate of half a day;

3. The Respondents do pay 60% of the Appellants' reasonable costs of this appeal to be subject to detailed assessment if not agreed.