Background
Abu Faraj Al-Libi (Mustafa Muhammad Masud Al-Jadid Al-Uzaybi), detained at Guantanamo Bay for nearly twenty years, brought proceedings against the Home Office, the Foreign Commonwealth and Development Office, and the Attorney General, alleging that SIS (MI6) and MI5 were complicit in his torture and mistreatment while he was held at CIA “black sites” in Afghanistan, Jordan, Romania, and Lithuania between May 2005 and September 2006. The claim is that UK intelligence services sent questions to be put to him during interrogations, knowing he was being subjected to extreme mistreatment. The proceedings are conducted under the Justice and Security Act 2013, which authorises Closed Material Procedures (CMPs) — hearings at which the court may consider sensitive material withheld from the claimant on national security grounds. Mr Justice Chamberlain appointed Rachel Toney as junior Special Advocate to represent the claimant’s interests in the closed portions of the proceedings.
Ms Toney had previously acted as junior Special Advocate in related litigation brought by Abu Zubaydah, who raised near-identical allegations of UK complicity in CIA black-site torture. That case settled in July 2025. A central issue in the present case was the appropriate scope of disclosure — and both the claimant and the Special Advocates argued that searches and disclosures already undertaken in the Zubaydah litigation should serve as a baseline. Ms Toney retained her closed files and handwritten notes from the Zubaydah case, using them in discussions with defendants’ counsel and in closed submissions at hearings in November and December 2025. No party raised any objection at those hearings to her doing so.
In the weeks that followed, SIS pressed GLD’s National Security and Counter-Terrorism team to retrieve all Zubaydah closed material from the Special Advocates, explicitly expressing concern that Ms Toney “should not have access to that material” because she was acting in a related case. When Ms Toney indicated she wished to retain the files until after a further hearing on 23 February 2026 — and reserved the right to apply to the court for permission to do so — SIS threatened to refer her to her vetting officer, her regulatory body, and the Attorney General. On 20 January 2026, while Ms Toney was absent and despite having received her email declining to consent to immediate collection, GLD security staff entered her chambers (admitted by chambers staff), searched and removed closed files and her own handwritten notes, accessed and deleted the Zubaydah folder from her closed laptop, and briefly also removed unrelated files she held in her capacity as counsel to the Investigatory Powers Tribunal.
The Court’s Holding
Mr Justice Chamberlain characterised the events of 20 January 2026 as a matter of the utmost seriousness. He ordered by consent on 6 February 2026, following an emergency hearing, that all materials taken from Ms Toney’s safe be returned to her forthwith and that the Special Advocates had permission to use those materials to prepare for and appear at the 23 February 2026 hearing. The court directed a further separate hearing — held on 25 March 2026 — to examine what had occurred and what systemic steps were required.
The judgment chronicles how GLD and the intelligence agencies acted unilaterally to deprive the Special Advocate of materials she was actively and openly using in discharge of her function, without any judicial authority and in the face of her express objection. The court accepted submissions that the episode raised the real possibility that the seizure was motivated by a desire to secure a litigation advantage — Ms Toney had made successful closed submissions on disclosure scope at the December 2025 hearing — and that it undermined the foundational requirement that Special Advocates must be, and must be seen to be, wholly independent of government. The Treasury Solicitor issued a formal apology describing it as “a collective failure.”
The court also addressed the systemic gap the incident exposed: there were no clear published protocols governing the delivery, storage, retention, and return of closed materials held in Special Advocates’ chambers, nor protocols delineating the boundary between the information owners’ security interests and the Special Advocates’ professional independence and their work product. The court noted that GLD’s own security officer had incorrectly asserted that all materials generated by Special Advocates belonged to GLD, and had invoked the threat of prosecution under the Official Secrets Act 1989. The judgment directed GLD to complete a lessons-learned exercise, produce draft guidance within 21 days of the judgment, and circulate it to all stakeholders — including the intelligence community, Special Advocates, government counsel, and courts with closed facilities — for consultation.
Key Takeaways
- Government actors may not enter a Special Advocate’s chambers, search her safe, remove her files and notes, or delete material from her secure laptop without judicial authority — doing so is unlawful, even where the underlying classified material was originally provided by the intelligence agencies.
- A Special Advocate’s handwritten notes and work product are not the property of GLD or the information owners; treating them as such and threatening prosecution under the Official Secrets Act was incorrect and itself compounded the breach.
- Retaining and using closed materials from one concluded case in a subsequent related case — where the scope of disclosure is directly in issue — is proper conduct for a Special Advocate and raises no procedural impropriety, particularly where defendants’ own counsel participated in discussions referring to that material without objection.
- Intelligence agency pressure on GLD to retrieve materials from the Special Advocate, accompanied by threats of referral to her vetting officer, regulatory body, and the Attorney General, was identified as giving rise to a legitimate inference of an attempt to obtain a litigation advantage by undermining her effectiveness.
- The CMP system depends fundamentally on the perceived independence of SASO and Special Advocates from government; any conduct that compromises or appears to compromise that independence risks rendering closed hearings procedurally unfair and undermining public confidence in the system as a whole.
Why It Matters
This decision is the most significant judicial examination of the Special Advocate system since the Supreme Court’s consideration of SASO’s independence in Tariq v Home Office [2011] UKSC 35. Where Tariq confirmed the structural adequacy of SASO’s separation from government, this case reveals that the structural protections can break down in practice when intelligence agency clients apply direct pressure on GLD to take action against a Special Advocate who is performing her role effectively. The court’s findings — that material was seized without authority, that work product was mischaracterised as government property, and that the operation was plausibly litigation-driven — strike at the core premise that the CMP system provides a fair substitute for open adversarial proceedings.
For practitioners and courts operating national security litigation, the judgment establishes that retention by a Special Advocate of closed materials from concluded proceedings for use in related active proceedings is permissible without prior judicial sanction, and that any challenge to such retention must be brought before the court rather than resolved unilaterally by government. More broadly, the mandated lessons-learned exercise and the requirement to promulgate binding guidance on the handling of classified material in Special Advocates’ chambers should produce the first publicly consulted protocol framework for this opaque but constitutionally important corner of English civil procedure.