The claimants had applied for judicial review of the Prime Minister’s decision that it was not necessary to establish a public inquiry to investigate allegations of the UK intelligence services’ involvement in torture, mistreatment and rendition of detainees in the aftermath of events on 11 September 2001. At a preliminary hearing the Court heard argument on (1) whether article 6(1) of European Convention on Human Rights applies to the judicial review claim and (ii) if so, whether the claimants are entitled to disclosure to the extent set out in Secretary of State for the Home Department v AF (No 3)  UKHL 28,  2 AC 269.
The court did not rule out the possibility that a party might in some circumstances invoke article 6(1) on behalf of a person unconnected to the proceedings, but the claimants could not do so in the present case. There was no reason why the scope of article 6 should extend to unknown persons who did not appear before the court and the judicial review claim was not determinative of the claimants’ civil rights. Accordingly, article 6 was not engaged. Even if article 6 were to apply, the Court was not willing to accept that AF (No 3) disclosure would be required in this case. The analysis of control orders which underpinned the conclusions in AF (No 3) did not apply. These proceedings do not involve the liberty of an individual in the sense that the proceedings are not concerned with granting release from detention. Nor does the refusal of a public inquiry raise anything akin to deprivation of liberty. The case will be decided on conventional judicial review principles, which will not examine the merits of the defendant’s decision but will consider whether the decision was lawful and the Court was not persuaded that the Special Advocates will be unable to deal with, or that the court will be unable fairly to decide, the questions of law in issue.
The Court held that its decision does not mean that the Home Secretary’s reasons for withholding material will avoid independent scrutiny or that there is any lacuna in the rule of law. The process by which the court considers whether the closed material has been justifiably withheld has not yet commenced. The Special Advocates will be able to probe the Home Secretary’s reasons and through that process, the court will be able to ensure the ingredients of a fair trial while upholding the strong public interest in national security.
James Stansfeld was involved in this case.