No error where closed material procedure sanctioned before determination of ‘neither confirm nor deny’ defence validity


Re: McGartland & Anor v SSHD [2015] EWCA Civ 686

The first claimant was alleged to have been an undercover agent for the security services in Northern Ireland before his identity was uncovered and he was the subject of an assassination attempt. The second named claimant was his partner. They argued that state officials had failed to honour promises to provide financial and non-financial support, and that they had suffered harm as a result. Among the complaints made included an allegation that their safety had been jeopardised by disclosure of their new identities.

The Secretary of State relied on a ‘Neither Confirm Nor Deny’ (NCND) defence. She applied for a declaration under the Justice and Security Act 2013, s 6 to use the closed material procedure, arguing that information about the security services’ operational methodology could not be presented in open court due to national security considerations.

The claimants challenged the decision of the judge to grant the s 6 application without first considering the validity of the NCND defence. They argued that the closed material was to be utilised only as a last resort, and was not justifiable under the circumstances. They claimed that a decision on the NCND issue was necessary to decide if it was in the interests of justice to make a declaration under s 6.

The Court acknowledged that a departure from open and natural justice was only envisioned in rare circumstances, but that use of the closed material procedure in this instance was in line with the intentions of Parliament. The material at issue was sensitive, and the claimant’s case could not be effectively determined without allowing the application for a closed procedure by the Secretary of State. The judge had given express consideration to the issue, and the granting of the s 6 declaration was a valid case management decision, which the Court had no basis to interfere with.

Phillippa Kaufmann QC was involved in this case.