Does Haralambous Tell us Anything About Privacy International?
The UK Supreme Court will hear the Privacy International case in December 2018. I posted on the Court of Appeal decision here. One of the concerns the Court of Appeal had related to the extent to which sensitive material might leak into the public domain if the Investigatory Powers Tribunal is subject to judicial review.The Supreme Court’s decision in R (Haralambous) v Crown Court at St Albans  UKSC 1 might shed some light on this point.
In Haralambous, search-and-seizure warrants were executed under the Police and Criminal Evidence Act 1984. The claimant argued that the search had been unlawful. The authorities agreed that the warrants should be quashed, but made an application to the Crown Court under s. 59 of the Criminal Justice and Police Act 2001 for an order allowing them to retain the seized material. The application was successful, based in part on information that was withheld from the claimant.
One of the issues addressed by the Supreme Court in the judicial review proceedings brought by the claimant was: “In proceedings for judicial review of an order, made inter partes, for retention of unlawfully seized material under section 59 of the CJPA, is it permissible for the High Court to have regard to evidence (upon which the warrant was issued) which is not disclosed to the subject of the warrant?” (at para. 11). The question, then, was whether a closed material procedure could be permissible in judicial review proceedings.
In Al Rawi v Security Services  1 AC 531, it was strongly suggested that the answer was ‘no’, at least in the absence of authorisation by statute: see especially Lord Dyson at paras. 39 and 62.
However, Lord Mance found two reasons to take a different approach here. First, in Bank Mellat v HM Treasury (No 1)  AC 700, a closed material procedure had been provided for in the courts below, but not in the Supreme Court. Nonetheless, a majority of the Court, faced with a slate of unappealing alternatives laid out by Lord Neuberger at paras. 39-42, held that a power to conduct a closed material procedure in the Supreme Court was implicit in the relevant statutory provisions. Just the alternatives were “unsatisfactory” in Bank Mellat in relation to an appeal, so they were unsatisfactory in the present case in relation to an application for judicial review (at para. 55).
Second, Lord Mance noted that ss. 31(5) and (5A) of the Senior Courts Act 1981 permit the High Court on judicial review to remit a matter to the original decision-maker with directions or, indeed, to substitute its judgement for that of the original decision-maker. These provisions apply in a limited range of circumstances but, crucially,
…only work on the basis that it is open to the High Court to consider and, where appropriate, itself give effect to the decision which the lower court or tribunal should have reached, if there is only one such decision which it could have reached. If the High Court cannot by a closed material procedure have regard to closed material, those subsections will not work (at para. 57).
He also strongly suggested that, notwithstanding the statutory underpinning in the 1981 Act, he would have reached the same conclusion in relation to “a purely common law judicial review” (at para. 59).
Accordingly, Lord Mance was satisfied that a closed material procedure “can and must” be made available by the High Court “where that is the procedure which Parliament has authorised in the lower court or tribunal whose decision is under review” (at para. 59). In sum, “the High Court can conduct a closed material procedure on judicial review of a magistrate’s order for a warrant under section 8 PACE or a magistrate’s order for disclosure, or a Crown Court judge’s order under section 59 of the CJPA” (at para. 59).
The statutory scheme in Haralambous is not directly analogous to the scheme considered in the Privacy International litigation. Nonetheless, Lord Mance’s analysis confirms that a closed material procedure can be made available in judicial review proceedings in some cases where Parliament can be said to have authorised it — and any such authorisation not need be explicit. Faced with the potentially unappealing prospect of holding that the ordinary courts have no jurisdiction at all over the Investigatory Powers Tribunal, the Supreme Court might hold that a closed material procedure can be employed by the High Court to keep sensitive information out of the public domain.
This content has been updated on June 5, 2018 at 11:31.