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The appointment of special advocates – the exception not the rule

It is rare to appoint special advocates in closed material proceedings and they were not to be appointed in judicial review proceedings challenging…

R (ex parte Terra Services Ltd) v National Crime Agency and Others (2020) EWHC 130 (Admin) (Irwin LJ, May J)

Executive summary

It is rare to appoint special advocates in closed material proceedings and they were not to be appointed in judicial review proceedings challenging the issue of a search warrant. There was no loss of liberty or any direct loss of rights.

Background

The National Crime Agency obtained a search and seizure warrant for the search of a commercial storage unit owned by the claimant. This followed the receipt of confidential material from the US Department of Justice (USDJ). The NCA made an ex parte application for the warrant which included public interest immunity (PII) material received from the USDJ. The claimant applied to the Crown Court for production of these documents. This request was declined and heard partly in closed session. Judicial review proceedings were issued challenging the legality of the issue of the warrant upon a number of grounds including its excessive width and the fact that it was likely to reveal legally privileged documents. The claimant renewed their application for release of the PII documents that had supported the application in the judicial review proceedings. That application was heard and rejected by the Administrative Court on 21 November 2019. The court held that the documents relied on were subject to PII. Their release could damage law enforcement arrangements between the US and UK and damage ongoing investigations in both jurisdictions if disclosed. Part of that application was heard in closed session. The present application submitted that a special advocate should be appointed to represent the interests of the claimant in closed sessions in the present judicial review proceedings.

The decision

In rejecting the application, the court held that the courts had given a clear hierarchy of cases where there was a need to supply, beginning with cases where the liberty of the subject was in question. (SSHD v AF (No 3) [2010] AC 269. The present application was directed towards premises and there was no question of loss of liberty or direct loss of rights. It was even rare to appoint special advocates in criminal cases where PII led to the exclusion of evidence (R v H and Others [2004] 2 AC 134). The court also did not see any particular need for the appointment of a special advocate in this case. The arguments relevant to the issue of the warrant could be aired in open court. Relatively few documents had been heard in the closed session.

Comment

This is a helpful case which establishes that the appointment of special advocates is the exception not the rule. It also shows that the cases will turn largely upon their facts but cases involving a loss of liberty or rights are required. The need for special advocates on the grounds of challenge is also a relevant factor. The earlier decision establishing that PII attaches to documents that could undermine law enforcement relations between different states and ongoing investigations is also of interest.

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