XX and others (Respondents) v The Security Service and others (Appellants) [2011] UKSC 34
- 2011
- United Kingdom
Topics
Public securityLegal bases
European Convention on Human RightsCourts
The Supreme Court (UKSC), United KingdomLaws
Right to a fair trialFacts
The respondents wanted compensation for their alleged detention, rendition and mistreatment by foreign authorities in various locations, including Guantanamo Bay. They claimed that the Security Services (the appellants) had been complicit in what had happened to them which, allegedly, included false imprisonment, trespass to the person, conspiracy to injure, torture and breaches of the Human Rights Act 1998. The appellants admitted that the claimants had been transferred and detained but denied any liability for the claimants’ detention or alleged mistreatment. At a case management hearing, the appellants said that they were in possession of material which they wished the court to consider in their defence, but which they would be obliged in the public interest to withhold from disclosure to the respondents (claimants). The respondents objected to this demand. In response, the appellants emphasised the difficulties that would be caused by the vast amount of sensitive material in their possession. The evidence filed on behalf of the appellants suggested that there might be as many as 250,000 potentially relevant documents, of which up to 140,000 may involve considerations of national security. The Court of Appeal had dismissed the appellant’s case which has come to the Supreme Court for review.
Legal grounds
Article 6 of the ECHR; principles of natural justice and open justice under common law
Findings
The Supreme Court, by a majority, dismissed the appeal. Whilst accepting that in certain circumstances, a closed procedure may be necessary in order to achieve real justice and a fair trial (for example, in wardship cases involving children), the court unanimously decided that there is no power at common law whereby a judge decides whether in the public interest certain material should be excluded from a hearing, with a closed material procedure. According to Lord Dyson, “As a general rule, real justice and a fair trial can only be achieved by open hearings, open disclosure, each side confronting the other’s witnesses and open judgments.” Lord Kerr added, “The right to be informed of the case made against you is not merely a feature of the adversarial system of trial, it is an elementary and essential prerequisite of fairness. Without it, a trial between opposing parties cannot lay claim to the marque of judicial proceedings.”