On Wednesday, Mr Justice Chamberlain convened a hearing to consider whether further steps are required following events on 20 January, when Government Legal Department (GLD) security staff, and administrative staff from GLD and the Special Advocates’ Support Office (SASO), entered the office of a Special Advocate and removed privileged material held in her secure safes. Files on the Special Advocate’s secure laptop were also double deleted. The Claimant claims that this constituted a search and seizure and was conducted at the direction of lawyers at MI6 and MI5, with the knowledge of GLD lawyers.
Jesse Nicholls acted for the Claimant at the hearing. James Stansfeld acted for the Defendants.
The removal of material from the Special Advocate arose in a claim brought by Abu Faraj Al-Libi, a Guantanamo detainee alleging UK complicity in CIA torture, in his claim against MI5, MI6 and GCHQ. The material removed was held by Al-Libi’s Special Advocate, Ms Toney and concerned a related case involving Abu Zubaydah, another Guantanamo detainee. She had been using the Zubaydah material in her work for Al-Libi. The Claimant asserts that Ms Toney had refused the GLD officers entry to her chambers. The Defendants’ evidence stated that the GLD officers had not seen the refusal at the time of retrieving the material. Ms Toney had indicated that if necessary, she would apply to the Court to retain the material. One of the issues for Mr Justice Chamberlain to determine, upon which he heard detailed argument, is whether Special Advocates are subject to CPR 31.22 or a common law prohibition against collateral use of material.
At the hearing on Wednesday both the Claimant and the Special Advocates alleged that the removal of the material had been driven by an improper purpose: to exert pressure on Ms Toney, to stymie her work, and to gain a litigation advantage over the Claimant and his Special Advocates by preventing Ms Toney having access to key material that she was deploying effectively in the CLOSED disclosure hearings in Al-Libi’s case. The events were described by the Claimant as a very grave abuse of power, aggravated by, the Claimant asserted, unjustified and sinister internal discussions by MI6 and MI5 lawyers in the immediate aftermath of the removal to refer Ms Toney to her security vetting officer, her professional regulator and the Attorney General. The Court heard evidence that the GLD security officer had repeatedly asserted to Ms Toney that all material created by her and other Special Advocates on the Zubaydah case belonged to the intelligence agencies, meaning they could enter and remove that material at any time. That was not, however, a submission advanced by the Defendant. The Claimant argued that this assertion would have serious and concerning implications for the independence of Special Advocates, the Closed Material Procedure system, the role and independence of the courts, and the rule of law.
The Defendants’ case was that there was no improper purpose, and the removal of the material, which was to be held securely pending any application to the Court by Ms Toney, was done for reasons of national security. At the hearing on Wednesday, the Defendants publicly accepted that Ms Toney had not acted improperly in any way. They also accepted that all of the removed material could be used by the Special Advocates in Al-Libi’s case, subject to it being held securely.
Mr Justice Chamberlain reserved judgment.
Jesse Nicholls acted for Abu Faraj Al-Libi, instructed by Megan Phillips and Mavi Salvatori of Bhatt Murphy.
James Stansfeld acted for the Defendants, led by Rory Phillips KC.
Press reporting of the hearing can be found here: