In a landmark case against the security services, rendition victims have won their case that special “Closed Material Procedures” are not permissible in a civil case for damages against those who were complicit in their extraordinary rendition. The judges ruled that courts cannot go beyond the current Public Interest Immunity process without new legislation from Parliament.
The judgement said that Closed Material Procedures are “a departure from the principles of open and natural justice, which are essential features of a common law trial” and that “the right to be confronted by one’s accusers is such a fundamental element of the common law right to a fair trial that the court cannot abrogate it in the exercise of its inherent power.”
The case of Al Rawi and others (Respondents) (Respondents) v The Security Service and others (Appellants) [2011] UKSC 34 had already settled out of court, but the Appellants had continued with their appeal to the Supreme Court in order to clarify the law.
A parallel case was decided at the same time regarding a decision made at an employment tribunal under the “Closed Material Procedures”. The case of Home Office (Appellant) v Tariq (Respondent) regards an immigration officer who was suspended and had his security clearance withdraw because his brother and cousin were implicated in a suspected plot to attack transatlantic flights. Mr Tariq’s cousin was later convicted of some offences relating to the alleged plot. There was no information at all which linked Mr Tariq to the alleged plot.
Lord Kerr dissented from the judgement with the following summary issued by the court:
“He held, first, that the withholding of information from a claimant which is then deployed to defeat his claim is a breach of his fundamental common law right to a fair trial. The removal of that right can only be achieved by legislation framed in unambiguous language. Secondly, such withholding also constitutes a breach of a claimant’s Article 6 right to a fair trial. Kennedy v UK was an anomaly. Lord Kerr would therefore have dismissed the appeal.”
The Supreme Court allowed the Home Office appeal by a majority of 8-1. The judges held that a closed material procedure is compatible with Article 6 of the European Convention on Human Rights and EU Law. The provision of a sufficient details of the allegations against him in order to allow the mounting of a effective challenge – known as “gisting” – was not necessary in this case under Article 6 of the European Convention on Human Rights because the claimant’s liberty was not at stake.
