Closed material procedures, which allow one party (usually the state) to produce evidence which their opponents are not permitted to see, have been the subject of sustained criticism since their inception. Their availability in judicial review proceedings was previously very limited; the withholding of evidence from a party was permitted in a few narrow scenarios to protect the rights of children. The Supreme Court in R (on the application of Haralambous) v Crown Court at St Albans and another has however expanded the opportunities to use such procedures in judicial review and, controversially, this expansion has not been expressly legislated for by Parliament.
Closed material procedures allow for one party to present sensitive evidence to the judge which other parties to proceedings cannot examine. ‘Special Advocates’ may be appointed to examine the sensitive evidence and represent the interests of parties excluded from reviewing it themselves. The effectiveness of Special Advocates has been questioned as they are prohibited from taking instructions on points arising from the secret evidence. Critics have also argued that closed material procedures offend the principles of procedural fairness and open justice. Proponents argue that they are necessary to protect national security. Such procedures were initially limited to ‘niche’ tribunals in the national security context (the Special Immigration Appeals Commission, Investigatory Powers Tribunal and Pathogens Access Appeals Commission). Their availability has gradually increased, with their introduction to employment tribunals, planning inquiries, financial restriction proceedings and, through Section 6, Justice and Security Act 2013 (“JSA 2013”) to civil proceedings.
Haralambous was a judicial review challenge to the legality of a decision to retain evidence following a search warrant. The warrant had been issued by a Magistrates’ Court under s.8 Police and Criminal Evidence Act 1984 (“PACE”) and the Crown Court subsequently authorised the police force to retain the evidence under s.59 Criminal Justice and Police Act 2001 (“CJPA 2001”). In both instances, material used by the authorities to obtain the warrant and retain the evidence had been withheld from the person affected on public interest grounds. The applicant sought judicial review of the Crown Court’s decision. It was agreed between the parties that JSA 2013 did not apply.
The applicant offered three cascading arguments in the Supreme Court challenging the use of closed material, arguing that:
- It was not permissible for a magistrate or court to rely on material which, on public interest grounds, will have to be withheld from a person affected by the order made;
- If a Magistrates’ Court and/ or Crown Court is permitted to review such material there is no basis for the High Court to review it during judicial review proceedings. The applicant relied on the Supreme Court case of Al-Rawi v Security Service  1 AC 531 where, obiter, it was, strongly suggested that it was not open to the courts to introduce close material procedures into judicial review without legislation from parliament;
- In any event, any decision by a court under s.8 PACE or s.59 CJPA 2001 could not withstand a challenge by the person affected, and must be quashed, unless that person had been supplied with the ‘gist’ of the information relied upon to obtain it.
The Supreme Court found against the applicants on each of these points. They found that a Magistrates’ Court could consider material that was to be withheld from the person affected by a warrant, noting that s.8 PACE involves “a purely ex parte process, directed to premises, rather than any particular person” and that there is “is nothing in the statutory scheme which expressly restricts the information on which the magistrate may act”. They found that the Crown Court was similarly entitled to rely on such material because s.59 CJPA 2001 required the Crown Court to “to put itself in the shoes of a hypothetical magistrates’ court being asked, immediately after the return of the property, to issue a fresh warrant with a view to seizure of the property”. As the Magistrates’ Court was entitled to consider withheld material, Parliament must have intended that the Crown Court could have regard to that same material to make the statute effective.
Turning to the issue of judicial review, the court relied on Bank Mellat v HM Treasury (No 2)  AC 700 to find that closed material procedures could be used in a judicial review of the Crown Court’s decision. In Bank Mellat (No 2) the Supreme Court, by a majority, had held that a power to hold a closed material procedure was implicit in statutory provisions. A statute permitting the Court of Appeal to use a closed material procedure must also allow the Supreme Court to use the same procedure when dealing with an appeal from that court, even though the Supreme Court was not expressly authorised to do so by statute. Applying this approach, the Supreme Court adjudged that if the High Court hearing a judicial review were bound to address the matter on a different evidential basis to the magistrate or Crown Court then it would be “self-evidently unsatisfactory, and productive potentially of injustice and absurdity”. Were that to be possible, the High Court could find against correct decisions of the lower courts reached on the basis of material not available to it. It would also struggle to act consistently with the requirements of s.31 Senior Courts Act 1981, which postulates that it will be considering the outcome on the same basis as the lower court or tribunal. The Supreme Court, having analysed the unsatisfactory alternative possibilities, determined that the “the only sensible conclusion is that judicial review can and must accommodate a closed material procedure, where that is the procedure which Parliament has authorised in the lower court or tribunal whose decision is under review”.
The Supreme Court also ruled against the necessity of providing a ‘gist’ to the affected third party of what had been presented to the Magistrates’ Court or Crown Court to obtain a warrant or order in every case, noting that every case must “be considered in the light of its particular circumstances”. The principles concerning irreducible minimum disclosure were not found generally to apply to proceedings concerning search warrants.
Exactly how the ruling Haralambous will affect the courts’ approaches to closed material procedures in judicial review is not yet clear. On the narrowest reading, closed material procedures have been expanded so that they can be used in the judicial review of orders for retention under s.59 CJPA. A wider interpretation could see the court implying the availability of closed material procedures in judicial review from other statutory provisions which refer to the judicial review of decisions of lower courts or tribunals where such a procedure is permitted. An interpretation that is wider still, and one that was favoured by the Supreme Court in obiter, is that a closed material procedure can be used in any judicial review of a decision of a lower court or tribunal arising out of circumstances where that body has lawfully used a procedure that involves withholding evidence from an affected party. The direction of jurisprudence in this area is likely to be affected by whether courts take what might be termed the ‘practical approach’ favoured in Haralambous and Bank Mellat (No 2) or the ‘principled approach’ favoured in Al-Rawi. The practical approach would lead to a more wide-ranging use of closed material procedures in judicial review on the basis that reviewing or appellate courts should have the same evidence available to them as the courts and tribunals whose decisions are under scrutiny. Closed material procedures would therefore be necessary at the appellate and review stage whenever the lower courts and tribunals have relied on evidence lawfully withheld from a party to the case. The principled approach would see a more restrictive approach to expanding closed material procedures in judicial review on the basis that the courts are gatekeepers of the fundamental principle of open justice. The courts should be slow to permit any expansion of the use of closed material procedures unless Parliament has explicitly legislated for it.