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The Court of Appeal has dismissed two separate appeals against declarations under section 6 of the Justice and Security Act 2013 (JSA 2013) that the relevant proceedings were ones in which closed material applications could be made to the court. In doing so, and in relation to both cases, the Court of Appeal found the two conditions under JSA 2013, sections 6(4) and 6(5) had been met, namely:
The Court of Appeal also considered CMP principles under Part 82 of the CPR including its being:
In coming to its decisions on these two separate appeals, the court took into account various leading authorities including Bank Mellat, Al Rawi and Mohammed.
These two appeals are of interest considering, as they do, the meaning and application of the relatively young and untested Justice and Security Act 2013 (JSA 2013).
As Lord Justice Richards observed, this Act authorises, 'in defined circumstances for the protection of national security', 'a serious departure from the fundamental principles of open justice and natural justice'.
However, given 'appropriate safeguards against inappropriate or excessive use of a closed material procedure are built into the provisions themselves, starting with the conditions for a section 6 declaration and encompassing the provisions for review and revocation of a declaration' and the defined conditions for its exceptional and rare use, Richards LJ considered there was 'no reason to give the statutory provisions a narrow or restrictive construction ... the provisions should be given their natural meaning and be applied accordingly'.
That said, the 'absolute protection' afforded to material which would be damaging to the interests of national security afforded under CPR 82.14(7) must be balanced against the rights under Article 6 of the European Convention on Human Rights (ECHR, Article 6).
In upholding the lower courts’ section 6 declarations, the Court of Appeal found, among other things:
Subscribers to LexisPSL Dispute Resolution can find more details here including further case analysis additional practical implications arising from these cases. If you are not a subscriber you can click here for a free trial to access.
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