Background
Witness IIA126, who formerly held a senior military position in Afghanistan, brought judicial review proceedings challenging two rulings by the Chair of the Independent Inquiry Relating to Afghanistan. Those rulings excluded him and his Witness Legal Team from sensitive “Green” evidence and hearings concerning alleged misconduct by UK Special Forces. He argued that the exclusion was unfair and unlawful under the Inquiries Act 2005, particularly because the evidence might expose him to criticism and potentially lead to a later criminal investigation.
This judgment did not determine the merits of that challenge or even whether permission for judicial review should be granted. It resolved interim questions concerning the claimant’s requests for specific disclosure, the treatment of closed material under two parallel closed-material procedures, and his application for a confidentiality ring through which he or selected lawyers could see otherwise closed information.
The Court’s Holding
Mrs Justice Farbey refused the claimant’s outstanding specific-disclosure requests. Some had already been adequately answered; others concerned a proposed ground of challenge for which permission had been refused, were too broad, or were not relevant or necessary for the fair and just resolution of the pleaded claim. The court also found no breach of the Inquiry Chair’s duty of candour.
For non-national-security material considered under the court’s inherent Haralambous jurisdiction, the court held that it must assess for itself where the public interest lies, using the factors in section 19(4) of the Inquiries Act 2005 as relevant but not jurisdictionally binding considerations. National-security material remained governed by the Justice and Security Act 2013 and CPR Part 82. After considering open and closed evidence, the court concluded that the public interest strongly required continued secrecy and ordered no further opening of material beyond disclosure already agreed with the Special Advocates.
The court also refused every proposed form of confidentiality ring. Disclosure to the claimant presented an unacceptable risk of inadvertent leakage, while even a lawyers-only ring risked revealing sensitive information through communications, silence, or conduct and could impair the lawyer-client relationship. The court considered the Special Advocates, the Inquiry legal team’s duties to the court, and continuing judicial supervision sufficient to protect procedural fairness.
Key Takeaways
- The decision concerns interim disclosure and procedure, not the lawfulness of the Inquiry Chair’s Green Hearing rulings.
- In a Haralambous closed-material procedure, the High Court independently balances the public interests in disclosure and secrecy, while giving appropriate respect to the Inquiry Chair’s assessments.
- National-security material must be handled under the Justice and Security Act 2013 framework rather than the Haralambous jurisdiction.
- Security clearance and professional trustworthiness do not by themselves make a lawyers-only confidentiality ring safe where inadvertent disclosure could cause serious harm.
Why It Matters
The judgment explains how the Administrative Court may manage national-security and other sensitive material simultaneously when reviewing a statutory inquiry. It distinguishes the mandatory statutory protection afforded to national-security information from the court’s independent public-interest assessment of other closed material.
It also underscores that open justice must prevail as far as possible, but may yield where close judicial scrutiny establishes an exceptionally strong public interest in secrecy. The substantive judicial review remains to be decided at a future rolled-up hearing.