Al-Uzaybi v Home Office: government's raid on special advocate's chambers exposes fault lines in closed proceedings

Imagine turning up to your chambers to find that government officials have, in your absence, entered your safe, removed your case notes and deleted files from your laptop. That is what happened to Rachel Toney, a junior Special Advocate with extensive experience in national security litigation, on 20 January 2026. Mr Justice Chamberlain's judgement in Al-Uzaybi (Abu Faraj Al-Libi) v The Home Office [2026] EWHC 1524 (KB) sets out why what occurred was not merely procedurally irregular but struck at the foundations of a system on which the rule of law in closed material proceedings depends.

The background requires a little unpacking. Ms Toney had acted as Special Advocate in litigation brought by Abu Zubaydah, another Guantanamo Bay detainee, who alleged UK intelligence agency complicity in his torture at CIA black sites. That case settled in July 2025. Ms Toney then took on the same role in the present case, brought by Abu Faraj Al-Libi with similar allegations. The two cases overlapped significantly in their subject matter and, in particular, in the appropriate scope and pace of disclosure. Ms Toney retained the closed files and her own notes from the Zubaydah case and used them to make submissions about disclosure in Al-Libi's case. The judge, the defendants' own counsel and everyone else in the room knew she was doing so. Nobody objected.

Then, in December 2025 and accelerating sharply into January 2026, lawyers at SIS began pressing for the materials to be retrieved. The urgency was directly linked to Ms Toney using those materials effectively in the Al-Libi disclosure arguments. On 20 January 2026, while she was out, a team including a member of the Government Legal Department's litigation team (the very team instructed on the other side of the proceedings) entered her chambers, accessed her safe and removed documents. Her notes were deleted from her laptop. Some files she held as Counsel to the Investigatory Powers Tribunal were also picked up, though later returned.

The most troubling element is not the physical entry, which Chamberlain J was careful not to characterise as unlawful given that chambers staff permitted access. It is what the documents disclose about how Ms Toney's conduct was perceived. Lawyers at MI5 and SIS contemplated referring her to her vetting officer, her professional regulator and the Attorney General. The defendants declined to confirm formally that no criticism of her remained until well into the hearing on 25 March 2026, and only after the judge pressed the point.

That is extraordinary. As Chamberlain J sets out in some detail, Ms Toney had twice asked for the Zubaydah materials to be collected. Nobody came. She was using those materials in exactly the way a competent advocate would. The submissions she made could not realistically have been from memory alone and the judge, sitting through the closed hearings, knew it. She proposed, when pressed in January, to apply to the court for permission to retain the material pending the February hearing. That is precisely the correct course. For that, she faced the prospect of regulatory referral.

The judgement also resolves a point of some importance on the use of closed documents across cases. Chamberlain J holds that the principle against collateral use of disclosed documents, codified in CPR 31.22, applies by analogy to closed material provided to Special Advocates even though they are not technically parties to proceedings. A Special Advocate who wishes to use such material in a second case must either obtain consent from the party who provided it or seek the court's permission. The judge was clear that permission should have been sought and equally clear that he would have granted it.

Five specific failures are identified: the unjustified imputation of impropriety to Ms Toney; the erroneous claim by GLD security staff that Special Advocates' own notes belong to the Government; the involvement of the opposing litigation team in accessing her safe; inadequate protection for legally privileged and otherwise confidential material; and the failure to consider that the safe also held documents from entirely separate proceedings.

A "lessons learned" exercise is underway within the GLD. That exercise, and the protocols it will produce, will matter well beyond this case. The Special Advocate system exists to attenuate the inherent unfairness of closed proceedings. If Special Advocates who do their job effectively face the prospect of referral to regulators by the very agencies they are scrutinising, the system's credibility is in serious jeopardy. Chamberlain J has made that point with considerable clarity. Whether the resulting protocols reflect it is another question, and one the court has reserved the right to revisit.