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The Dangers of Closed Proceedings

Jamie Potter

20 November 2013
The Administrative Appeals Chamber of the Upper Tribunal ("UT") has upheld, in part, the appeal of the All Party Parliamentary Group on Extraordinary Rendition ("APPGER") from the First-tier Tribunal ("FTT") decision in the case of All Party Parliamentary Group on Extraordinary Rendition v Information Commissioner and Foreign and Commonwealth Office [2013] UKUT 0560 (AAC) ("APPGER v FCO", not yet available on the Upper Tribunal website).  Hogan Lovells acted for the APPGER on a pro bono basis throughout the proceedings.

The decision is the first UT decision to provide significant guidance on the conduct of closed proceedings in freedom of information cases.  Such guidance was considered necessary by the UT as a result of unfairness to APPGER considered so significant as to amount to an error of law, occasioned in part because of inadequate information provided to the appellant after the conduct of lengthy closed sessions.

The procedural and substantive history of APPGER v FCO is relatively complex, but in short concerned a number of requests made by APPGER to the Foreign and Commonwealth Office (the "FCO") concerning the UK's involvement in extraordinary rendition.  Extraordinary rendition is the extra-judicial transfer of detainees, typically individuals of interest to the security services, between countries, generally for the purposes of interrogation and often in circumstances where there is a real risk of torture.  Despite strenuous historic denials, it is now understand that the US conducted numerous extraordinary rendition after 9/11 (and even before), and it is believed that the UK was aware of this programme and may have been complicit in some of the renditions in question.

It is therefore unsurprising that one of the significant issues in the appeal concerned the application of the public interest test in respect of information covered by the section 27 FOIA exemption for information the disclosure of which would, or would be likely to, prejudice international relations.

The FTT gave the parties an opportunity to comment on the draft judgment, which included an extremely broad definition of "what is known as the 'control principle', whereby material provided, on security or diplomatic channels, is not released without the specific consent of the provider".  Ultimately, the FTT considered that the maintenance of the "control principle", as defined, gave rise to "very strong public interest", which outweighed the "very strong public interest" in disclosure of information regarding the UK's role in extraordinary rendition.

However, the FCO itself acknowledged in its comments on the draft judgment that the "term 'control principle' has only formally been used in connection with sharing of information on intelligence and security liaison channels".  The FCO therefore essentially suggested that the FTT used "control principle" as a defined term for the "understanding" described above, while acknowledging this went beyond the previous use of the term.

The APPGER applied for the hearing to be re-opened on the basis that the FTT's error went beyond anything considered in the open parts of the proceedings and effectively "undermined [the FTT's] whole approach to the [public interest] balancing exercise".  The FTT did not respond to this correspondence, making only a partial amendment to the definition of the "control principle", which was inconsistent with other references to the "control principle" throughout the judgment, as well as remaining inconsistent with historical usage of the term.

Throughout the four-day appeal hearing, the UT repeatedly pressed the FCO for clarification of what its position was as to the risk of disclosure of the information in question.  It was only on the final afternoon, shortly before closing statements, that the FCO provided a further statement confirming that:

"The FCO's principal case before the FTT was that the public disclosure of any of the documents in respect of which section 27 had been claimed would further undermine US confidence in its exchanges with the UK, including in the field of intelligence sharing.  The release of such documents would complicate the intelligence-sharing relationship and give rise to a real risk of a further reduction in the flow of intelligence."

As the UT recognised, the arguments relating to the "control principle" in the Binyam Mohamed litigation and elsewhere had generally been made on the basis that disclosure of a certain type of information (secret intelligence) would affect the future sharing of that particular type of information.  What the FCO was now arguing was that disclosure of one type of information (diplomatic) could affect the future sharing of a different type of information (secret intelligence).  This required an additional (and new) leap of logic and therefore also additional evidence.

The UT concluded that the "failure of the parties and the FTT to make this clear to APPGER resulted in avoidable substantive and procedural unfairness."  The UT considered this unfairness to be so significant that the failure of the FTT to reopen the hearing at APPGER's request, which could have remedied the unfairness, constituted an error of law.  The UT further found that the FTT's approach to the "control principle" constituted a second error of law.

Although acknowledging that the FTT brought "care and diligence" to its task, the UT found that the unfairness of the proceedings was caused at least in part by the approach to the closed proceedings.  The UT therefore considered it appropriate to make "general observations" regarding the conduct of those proceedings.

The UT began from the position that "a proportionate approach must be taken and what is or is not fair in a given case will depend on the circumstances of the case."  With respect to assessing the public interest balance, the UT likened its preferred approach to that taken in respect of PII claims, namely that there should be "appropriately detailed identification, proof, explanation and examination of both:

(a) the harm or prejudice; and

(b) benefits that the proposed disclosure of the relevant material in respect of which the exemption is claimed would (or would be likely to or may) cause or promote."

The UT suggested that that an exchange of witness statements is not necessarily the best way to identify such issues, proposing some form of agreed document, identifying the matters in dispute as an alternative.

As to the conduct of closed proceedings, the UT adds to the observations in Browning v Information Commissioner [2013] UKUT 0236 (AAC) (the first UT case to consider such procedural issues, although only in respect of one particular issue), suggesting that after any closed session, the FTT and the parties involved in that closed session "should consider:

(a) whether amendments or additions should be made to an open document identifying the actual risks of harm being asserted, and/or

(b) whether such an open document should be prepared; and/or

(c) whether the excluded party should be told in specific or general terms of closed evidence, reasoning or argument."

According to the UT:

"That consideration is directed to ensuring that so far as possible the excluded party is informed of the case he has to meet.  Also, it is directed to ensuring that the tribunal and the other parties keep under review the validity of the reasons why evidence and argument and/or the gist of them should be withheld from the excluded party."

It has taken nine years for this issue to reach beyond the FTT in the FOIA jurisdiction and it is possible, if not likely, that many of the thousands of cases over the previous eight years have fallen short of the guidelines now given by the UT to ensure an appropriate level of fairness.  Clearly such lessons must be learned far sooner in relation to proceedings under the Justice and Security Act 2013 if serious miscarriages of justice are to be avoided.

Jamie Potter

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