Least said soonest mended? Secret hearing at the Supreme Court

Lord Neuberger, President of the Supreme Court, made the following statement in open court in the course of hearing an appeal from the Court of Appeal’s majority decision in Bank Mellat v HM Treasury (No 2) [2011] EWCA Civ 1

[2012] QB 101 [2011] 3 WLR 714 on appeal from Mitting J [2010] EWHC 1332 (QB) [2010] WLR (D) 148.

“Yesterday morning, having heard full argument on the issue the previous day, we decided, for reasons to be given later – and, it should be added, by a majority of six to three – that we had power to consider the closed judgment of Mr Justice Mitting (“the closed judgment”) in this case. This would involve part of this hearing being conducted in private without Bank Mellat or its representatives being present. We also indicated that, on the basis of the arguments we had so far heard, we were not persuaded that it was necessary to take such a course.”

“The substantive appeal concerns the validity of an order made by the Treasury in 2009, which significantly and detrimentally affected the Bank’s business. We have also heard the whole of the Bank’s argument and certain interested parties and in response from the Treasury on the substantive appeal. The Treasury now applies for us to look at, and hear brief submissions on, the closed judgment of Mr Justice Mitting on the basis that we cannot be wholly confident of disposing of the bank’s appeal justly without considering the closed judgment. We are very dubious indeed whether this will turn out to be the case and we are also sceptical whether as full an open gist of the judgment has been provided as should have been possible. However, an incidental vice of the closed material procedure is that unless and until an appellate court sees the judgment it often cannot be sure its contents will be irrelevant or that its contents have been fully gisted.”

“The closed judgment is, we have been told, much briefer than the main open judgment of Mitting J, but it may just conceivably contain relevant material for the purpose of disposing of this appeal. It is closed because it contains material which he decided should not be made public on the grounds of public interest and national security. We have reluctantly decided that we cannot consider the closed judgment without having a closed hearing, as otherwise the contents of the closed judgment would be revealed to the public, including Bank Mellat and its representatives.”

“It must be emphasised that this is a decision which is reached with great reluctance by all members of the court; indeed it is a majority decision. No judge can face with equanimity the prospect of a hearing, or any part of a hearing, which is not only in private, but involves one of the parties not being present or represented at the hearing and not even knowing what is said either at the hearing or in a judgment in so far as it discusses what was said or produced by way of evidence at the closed hearing. Nonetheless, as Parliament has decided that, in certain circumstances, such a procedure is necessary and permissible in a trial before a Judge, we have concluded that, on an appeal from a decision in a case where a Judge has considered closed material and given a closed judgment, it may be necessary for this court to go into closed session in order to dispose of the appeal justly.”

“We emphasise that (i) this is course which is to be taken only where the court is satisfied that it is absolutely necessary to dispose of the appeal justly, (ii) the party who is excluded, in this case Bank Mellat should be given as much information as possible about the content of the evidence and arguments presented at any closed hearing and the contents of any closed judgment, (iii) the interests of that party should be protected as far as possible by the full involvement of special advocates at the closed hearing, and (iv) when we give our judgment, we will try to avoid placing any reliance on the closed material, and, in so far as it is necessary to do so, to keep any reliance to a minimum and give as much detail about that material to Bank Mellat and the public as we properly can.”

In his judgment of the Court of Appeal, Maurice Kay LJ said at para 50

In the present case, there is a statutory procedure akin to judicial review. Although it encompasses a closed hearing and the deployment of special advocates, no complaint is made about that.”

He added, at para 83:

Although we held a brief closed hearing in the course of the appeal, I do not find it necessary to refer to it or to the closed judgment of Mitting J in more detail than he did…”

Nevertheless, the matter has given rise to considerable discussion upon reaching the Supreme Court, and their Lordships clearly felt uncomfortable about the necessity for a closed hearing. The Supreme Court is unique in this jurisdiction in having its proceedings fully televised, via a link to Sky News on its own website, and in placing its judgment summaries, read out in open court, onto YouTube. As the great jurist Lord Steyn and others have often remarked, sunlight is the best disinfectant. Justice must be seen to be done, and in this respect the Supreme Court has gone the extra mile (figuratively at least, though only a stone’s throw across Parliament Square from its inaccessible predecessor, the Appellate Committee of the House of Lords).

Here’s what the UK Human Rights Blog said about this anxious development:

… the Government, which is being sued, gets to stay in court whilst the person doing the suing – and their lawyers – have to leave. The judges then hear security sensitive evidence which is potentially central to the case. Whilst one side is absent. No wonder Lord Neuberger, who as Master of the Rolls robustly blocked an attempt to introduce closed material procedures in civil trials via the back door (see his judgment in Al Rawi e.g. at para 30), sounds so pained in his statement. Curiously, this final hard-hitting paragraph was sent by the Court to its public email list but was left off the statement published on the Court’s website:

‘No doubt in due course when we have completed the closed hearing and Mr Brindle [for Bank Mellat] has made his closing submissions, and we in due course consider the matter and give our judgment, we will have quite a few things to say about this unhappy procedure.’

Is this another deleted Neuberger paragraph? Was it because he referred to secret hearings as an “unhappy procedure” in the midst of a crucial Parliamentary debate over expanding their scope?”

This is what Lord Neuberger MR had said in Al Rawi v Security Service [2010] EWCA Civ 482[2012] 1 AC 531

In our view, the principle that a litigant should be able to see and hear all the evidence which is seen and heard by a court determining his case is so fundamental, so embedded in the common law, that, in the absence of parliamentary authority, no judge should override it, at any rate in relation to an ordinary civil claim, unless (perhaps) all parties to the claim agree otherwise. At least so far as the common law is concerned, we would accept the submission that this principle represents an irreducible minimum requirement of an ordinary civil trial. Unlike principles such as open justice, or the right to disclosure of relevant documents, a litigant’s right to know the case against him and to know the reasons why he has lost or won is fundamental to the notion of a fair trial.”

Curiously enough, Lord Neuberger MR observed in another case, British Broadcasting Corpn v Sugar (No 2) [2010] EWCA Civ 715 [2010] 1 WLR 2278, para 48, that while “Sunlight is the best disinfectant … it can also burn”.

Another blog, Obiter J, observed:

Closed hearings are permissible, by statutory authority, in certain instances. One example is in the Special Immigrations Appeals Commission. It would be very odd if the Supreme Court could not hear an appeal because the lower court had issued a closed judgment. However, there appears to be no statutory authority exactly on the point. The full reasoning of their Lordships is awaited with considerable interest. The Justice and Security Bill – currently before Parliament – will make ‘closed material procedures’ available in civil cases before the High Court and appellate courts.”

The Guardian report of the matter noted:

The decision to hold what is known as a “closed material procedure” (CMP) – in which claimants are prevented from discovering the security evidence against them – was made after lawyers for the Treasury urged the justices to read a secret judgment from a lower court.

Neither the House of Lords not the supreme court has ever held a CMP before to read a secret judgment or hear secret evidence since such procedures began in specialist immigration and security tribunals more than 10 years ago.”

The UK Supreme Court blog (which is not published by, but comments on, the court) noted:

There is much to take away from so short a statement, not least the ominous threat at its conclusion, but a particular point of interest is the seemingly irreconcilable tension between the Court’s decision only to consider the judgment if necessary and the arguably trite statement that the Court will not be able to assess the judgment’s relevance without first reviewing it. The need to read the statement before deciding whether it needs to be read is not just an incidental vice of the closed material procedure; it is an inevitable fallacy.”

UKSC: doors closed to Bank Mellat