Standards of candour in closed hearings, and corporate witness statements (Attorney General v BBC; R (‘Beth’) v IPT)
Public Law analysis: In reviewing the conduct of MI5 in two sets of High Court proceedings, the court considered the serious implications of the provision of false information in the context of closed proceedings. The court provided an overview of the limited circumstances which justify departure from the principle of open justice pursuant to section 6 of the Justice and Security Act 2013 (‘JSA 2013), acknowledging that the appointment of special advocates mitigates rather than extinguishing the inherent unfairness that arises. In this case, the special advocates, the High Court, and the Investigatory Powers Tribunal (‘IPT’) were all misled on a key issue and had made decisions relying upon this misinformation. The court recognised that the safeguards in closed material proceedings are reliant on the high standards of candour of MI5 and expressed the need for a prompt and effective investigation when there is evidence of a departure from this high standard. The importance of compliance with CPR 32 PD, para 18.2, which applies to government departments as well as corporate entities, was also considered (para [173]). Written by Alexandra Scott, barrister at Mountford Chambers.