Application for permission not to disclose material except to Court or special advocate denied pending decision under Justice and Security Act 2013, s 6


Re: McGartland & Anor v The Attorney General [2014] EWHC 2248 (QB)

An application by the defendant for permission not to disclose material except to the Court or a special advocate was denied pending a decision under the Justice and Security Act 2013, s 6.

The case involves a man claiming to have been an agent in the Royal Ulster Constabulary and/or Special Branch in Northern Ireland who claims his cover was blown and he escaped being kidnapped by the IRA by living under a false identity. He claims he was offered assistance by the UK but that the arrangements did not fulfil the promises made by State officials and he has suffered financial and other losses as a result.

The defendant Attorney General made an application to use sensitive material in the defence of her case. The claimants argue that the sensitive material should instead be heard in closed proceedings, under s 6, which they argue would be sufficient to protect the material. The claimants also argued that the Attorney General’s assertion that the interests of national security do not require her to confirm or deny whether the claimant was a secret agent is untenable. They argue that this issue ought to be decided first, before considering the application under s 6.

The judge declined to decide this issue in the absence of a statutory procedure to do so and because he did not consider the decision could be made without taking into account the closed material. The process of vetting members of the claimant’s legal team before making the closed material available would be too onerous and time consuming and would not be satisfactory to the defendant.

The judge made a draft order, subject to submissions, on the further conduct of the case and decided to proceed with the s 6 application.

Phillippa Kaufmann QC was involved in this case.