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BISHER AL RAWI & 6 ORS v (1) SECURITY SERVICE (2) SECRET INTELLIGENCE SERVICE (3) ATTORNEY GENERAL (4) FOREIGN & COMMONWEALTH OFFICE (5) HOME OFFICE & (1) JUSTICE (2) LIBERTY

The court had no common law power to adopt a closed material procedure in an ordinary civil claim for damages. Unlike the public interest immunity procedure, a closed material procedure involved a departure from the principles of open and natural justice and such a change could only be for Parliament to make.

18 July 2011

The appellant United Kingdom government entities (D) appealed against a decision ((2010) EWCA Civ 482; (2010) 3 WLR 1069) that a court had no power to order a closed material procedure in an ordinary civil claim for damages. The issue had arisen in proceedings where C alleged that D had been complicit in their detention and ill-treatment by foreign authorities at various locations, including Guantanamo Bay. D had filed an open defence denying any liability. They indicated that they were in possession of material which they wished the court to consider but were obliged to withhold from disclosure in the public interest. They proposed the adoption of a closed material procedure, involving parallel open and closed proceedings and judgments, with C's interests in the closed hearings being protected by special advocates. D argued that a court had power to substitute a closed material procedure for a conventional public interest immunity exercise in exceptional circumstances, such as wher...

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