• In the case of Al Rawi v Security Service [2011] UKSC 34; [2012] 1 AC 531, it was held that the court doesn’t have the jurisdiction to hold a closed material procedure in ordinary civil claims for damages.

Facts of the Case

  • C, Al Rawi, argued that the Security Service were complicit when they detained and mistreated people in areas such as Guantanamo Bay.
  • D, the Security Serviced, denied liability and filed an open defence alleging so. They asserted that the court ought to consider the evidence they held but, because of public interest, the information ought to be withheld.
  • D proposed the use of a closed material procedure with certain advocates who represent C.
  • The Court of Appeal found that the court did not have the power to order the closed material procedure in an ordinary civil claim for damages.
  • D appealed the Court of Appeal’s finding.

Issues

  • Did the court have the power to order the closed material procedure?

Held by the Supreme Court

  • The Supreme Court dismissed the appeal by D and found that the court could not conduct a closed material procedure in an ordinary civil claim.

Lord Dyson JSC

  • “For example, it is surely not in doubt that a court cannot conduct a trial inquisitorially rather than by means of an adversarial process (at any rate, not without the consent of the parties) or hold a hearing from which one of the parties is excluded. These (admittedly extreme) examples show that the court’s power to regulate its own procedures is subject to certain limitations. The basic rule is that (subject to certain established and limited exceptions) the court cannot exercise its power to regulate its own procedures in such a way as will deny parties their fundamental common law right to participate in the proceedings in accordance with the common law principles of natural justice and open justice.” [22]

Lord Clarke JSC (dissenting)

  • “If he is persuaded that it is necessary in the interests of justice that some form of closed process should take place, I can see no reason why such a process should not be followed. If, as is common ground, it was open to the courts to develop the common law in children or wardship cases or in confidentiality cases on the ground that it was necessary to do so in the interests of justice, the same principle should apply here. I appreciate that this is at the end of what has hitherto been described as the PII process. However, what to do at that point can to my mind fairly be regarded as part of that process. It is certainly very closely related to it.” [178]