A (A Child) v The Chief Constable of Dorset Police [2010] EWHC 1748 (Admin)

[2010] EWHC 1748 (Admin)

Case No CO/12780/09

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 16 July 2010

Before

THE HONOURABLE MR JUSTICE BLAKE

Between

AClaimant

The Chief Constable of Dorset PoliceDefendant

BInterested Party

Alison Macdonald (instructed by Fisher Meredith and Co) for Claimant

Russell Fortt (instructed by Dorset County Counsel Legal Services) for Defendant

Phillippa Kaufmann (instructed by Bindman and Co) for Interested Party

Hearing Hearing dates: 30 June 10

Judgment

Introduction

[1]This is an application made by the interested party B who seeks the court’s directions to prevent the defendant from serving the claimant with what are described as sensitive confidential documents in the course of an application for judicial review. The claimant brings the claim for declaratory relief and damages with respect to police actions to which he was subject in August 2009. The sensitive documents include the defendant’s draft summary grounds for resistance to the claim and the evidence exhibited to those summary grounds.

[2]In brief the interested party submits as follows:- i) The defendant’s proposed grounds of resistance rely on the material concerning B that is presently private and confidential. ii) Disclosure of the whole or indeed the gist of such material would have an adverse effect on B and his interests, particularly his right to respect to private life within the meaning of

Article 8 of the ECHR

but also other human rights. iii) Disclosure of such material is not necessary for the claimant to litigate the judicial review claim he seeks to bring. iv) Further or in the alternative, non-disclosure is necessary and proportionate and required by the court’s duty to protect the interested party’s human rights.

[3]The interested party relies on further sensitive material to support the case of breach of Convention rights.

The Judicial Review

[4]The claimant is a young man of sixteen years of age in full time education and of good character. At about 11pm on Friday 31 July 2009 the claimant and three of his friends were present in a part of Bournemouth. He states that his parents knew that he was out that night and was planning to stay the night with one of his friends. The group was searched for alcohol and drugs by two police officers and a number of police community support officers, nothing was found and the officers left. A little later the claimant and his group met the same police officers and/or PCSOs who asked them where they were going and how old they were. The claimant gave his age as sixteen; another member was sixteen and two were aged fifteen. They told the police that they were going to get food from a fast food outlet. A little later shortly before midnight, the group arrived at the fast food outlet to buy food and when they went out to eat it they encountered the officers who took them into a police vehicle and brought them to a centre elsewhere in Bournemouth. After a time the parents were informed of A’s presence at the safe centre. They were told by officers that A had not committed any crime and that he was not in any trouble but were given limited information in response to the question why A had been picked up. The officers told the claimant’s parents that the claimant had been seen with an “inappropriate adult” but would not give any further details, they were given a document entitled “Stay Safe 31 July 2009”. An officer drove the claimant and his mother home at about 1.30am.

[5]The defendant accepts that the claimant was compulsorily removed from the fast food outlet in Bournemouth and detained for a period of time, if the claimant’s timings are right, something in the order of an hour and a half, but contends that such detention was authorised by Section 46 of the Children Act 1989. That provision is in the following terms:- “(1) Where a constable has reasonable cause to believe that a child would otherwise be likely to suffer significant harm, he may- a) Remove the child to suitable accommodation and keep him there or b) Take such steps as are reasonable to ensure the child’s removal for any hospital or any place in which he is then being accommodated is prevented. (2) For the purposes of this act a child with respect to whom a constable had exercised his power under this section is referred to as having been taken into police protection. (3) As soon as it’s reasonably practicable after taken a child into police protection, the constable concerned should- i. Inform the local authority within whose area the child was found and the steps that have been taken and are proposed to be taken with respect to this child and the reasons for taking them; ii. Give details to the authority within whose area the child is ordinarily resident (“the appropriate authority”) of the place at which the child is being accommodated; iii. Inform the child (if he appears capable of understanding)- 1. Of the steps that have been taken with respect to him under this section and the reasons for taking them and 2. Of the further steps that have been taken with respect to him under this section; iv. Take such steps as are reasonably practicable to discover the wishes and feelings of the child… (4) As soon as is reasonable and practicable after taking the child into police protection, the constable concerned shall take such steps as are reasonably practicable to inform: i. The child’s parents…of the steps that he has taken with the respect to the child the reasons for taking him and the further steps that may be taken with respect to him under this section. (5) On completing any inquiry under Section 3e, the officer conducting it shall release the child from police protection unless he considers that there is still reasonable cause for believing that the child would be likely to suffer significant harm if released. (6) No child may be kept in police protection for more than 72 hours.” a) Remove the child to suitable accommodation and keep him there or b) Take such steps as are reasonable to ensure the child’s removal for any hospital or any place in which he is then being accommodated is prevented. (2) For the purposes of this act a child with respect to whom a constable had exercised his power under this section is referred to as having been taken into police protection. (3) As soon as it’s reasonably practicable after taken a child into police protection, the constable concerned should- i. Inform the local authority within whose area the child was found and the steps that have been taken and are proposed to be taken with respect to this child and the reasons for taking them; ii. Give details to the authority within whose area the child is ordinarily resident (“the appropriate authority”) of the place at which the child is being accommodated; iii. Inform the child (if he appears capable of understanding)- 1. Of the steps that have been taken with respect to him under this section and the reasons for taking them and 2. Of the further steps that have been taken with respect to him under this section; iv. Take such steps as are reasonably practicable to discover the wishes and feelings of the child… (4) As soon as is reasonable and practicable after taking the child into police protection, the constable concerned shall take such steps as are reasonably practicable to inform: i. The child’s parents…of the steps that he has taken with the respect to the child the reasons for taking him and the further steps that may be taken with respect to him under this section. (5) On completing any inquiry under Section 3e, the officer conducting it shall release the child from police protection unless he considers that there is still reasonable cause for believing that the child would be likely to suffer significant harm if released. (6) No child may be kept in police protection for more than 72 hours.”

[6]Some of these terms are defined by Section 319 of the Children Act 1989 as follows:

“ ‘harm’ means ill treatment or the impairment of health or development including for example impairment suffered from seeing or hearing the ill treatment of another;” ‘development’ means physical, intellectual, emotional, social or behavioural development; ‘health’ means physical or mental health; ‘ill treatment’ includes sexual abuse and forms of ill treatment which are not physical.”

[7]The claimant’s solicitors sought further information as to why A had been made subject to this detention on the night in question. The best answer they received was in a letter of 23 October 2009 which simply states that: “On the night in question your client was seen by police officers in the company of three other young persons, two boys and a girl, in a take-away in Christchurch Road where an adult had recently met up with them. This was at 23.35hrs. Officers had concerns about the welfare of your client and his companions with this adult and a decision was made to remove your client and his friends to a place of safety in accordance with the operation”.

[8]On 28 October 2009 this claim was issued. The claimant submitted this summary account of the detention of the claimant in pursuit of the statute and the police operation underway that night was unlawful for a number of reasons namely:- i) The detention was outwith the power of the statute properly construed. ii) The operation being conducted by the police on the night in question was far broader in terms of its aims than the statutory powers permitted. iii) However the statute construed there was no reasonable cause to believe that the claimant was likely to suffer significant harm, if not immediately removed from the take-away. iv) The claimant’s treatment amounted to detention and a deprivation of liberty within the meaning of

Article 5 of the ECHR

and the reasons given were incapable of amounting to any basis for lawful justification within the meaning of Article 5(1). The claimant in particular focuses upon the provisions of Article 5(1)(d) as the only potentially applicable sub paragraph ‘the detention of a minor by lawful order for the purpose of educational supervision is lawful detention for the purpose of bringing him before the competent legal authority’. v) The information provided was incapable of constituting the reasons that the statute was required to provide, and the absence of reasons is both a breach of the statute itself and prevents effective supervision of the legality of the detention on challenge in the courts.

[9]On 4 December 2009 the defendant prepared summary grounds in response to this application. The claimant has not yet seen these grounds although they contained matters of law as well as fact. In summary the grounds contend that the removal and detention was in accordance with the powers under Section 46 of the Children Act and did not give rise to a breach of Article 5 or 8 of the ECHR. The defendant submits that he has only to give broad outline reasons for the removal of the claimant due to the competing interests of the interested party who was with the claimant at the time of the removal. Full reasons were provided to the court. If the court considers it appropriate to serve these grounds on the claimant notwithstanding the stance which the interested party takes in these proceedings then any inadequacy in the reasons would have been rectified. In any event the defendant submits that final failure to give reasons does not render the detention unlawful.

[10]The defendant sought a stay of the application until the question of whether he could serve the summary grounds could be the subject of adjudication. Paragraphs 23 to 37 of those summary grounds set out the defendant’s contentions of law. Amongst those is the proposition that Article 5(1)(b) of the ECHR may be relevant to the case, as well as Article 5(1)(d) namely “the lawful arrest or detention of a person… in order to secure fulfilment of any obligation prescribed by law”.

[11]On 4 March 2010 John Randall QC sitting as a Deputy High Court Judge made directions on the interested party’s application. Amongst those directions were the following orders:- i) Until final judgment the application or further order, the identity of the interested party must not be disclosed in any public hearing or any court documents and he should be referred to as B or the interested party. ii) Until after final judgment of the said application or further order under Section 11 of the Contempt of Court Act 1981 neither the identity of B or any details which would be likely to identify B must be published in any record of these proceedings. iii) Until final judgment no party to these proceedings nor any non-party is to obtain from the records of the court any copy of the defendant’s draft summary grounds including supporting documents or the confidential schedule identified by the interested party which are together known as the sensitive information. iv) Until final judgment on the application that the defendant should not disclose to the claimant the contents of the documents referred above as about all the sensitive information.

[12]The parties subsequently explored what practical means there may be for resolving the problems in this case and in mid June 2010 a document drafted for the defendant’s summary background of information was prepared and served upon the claimant. Paragraph 6 of that document reveals that the PCSO “knowing of this background feared that the group (including the claimant) were about to go back to B’s address”. Paragraph 8 is in these terms:- “Due to B’s presence and his background and due to the lack of adult supervision and given the likelihood that the group were about to go back to B’ house late at night PC Lovering formed the belief that the group were at risk of significant harm and took the decision to take them to a place of safety pursuant to Section 46(1) of the Children Act 1989.” That information has advanced the claimant’s state of knowledge as to the issues in the case but does not inform the claimant of what it was feared might happen back at B’s house and what the significant harm was that it was feared A may be subjected to.

B’s application for suppression of the information

[13]The grounds of this application have already been summarised. It was submitted on B’s behalf that:- i) That the claim for judicial review could properly be determined on its merits without the claimant or his legal team having any further information about the reasons why the action was taken or the grounds for the reasonable belief in the case. ii) The judicial review could be split into two hearings and if the claimant succeeds on the general propositions, a judicial investigation of the more particular proposition would be unnecessary. iii) That if the fair hearing could only proceed at risk of violation of B’s rights, there was a basis for supporting a contention of the defendant that permission should be refused and the proceedings stayed on the basis that the requirements of public policy prevented their hearing. iv) The resolution of the conflict could be achieved if the claimant’s lawyers were prepared to undertake to examine all the sensitive material themselves without disclosure to their client. v) If none of the other solutions appeared appropriate, there was a late suggestion made (not advanced in the skeleton argument lodged for the hearing) that a specially appointed advocate could represent the claimant’s interest in the substantive challenge.

[14]At the outset of the case and having had a chance to read the parties’ pleaded cases, the skeleton arguments and the principal authorities relied upon, the court invited the parties to focus upon the following proposals for reconciling the different interests of the case:- i) That the claimant be provided with a gist of the nature of the harm that it was feared he may encounter in the place where it was feared he may go. ii) That the claimant be prevented from disclosing that gist to third parties unconnected with these proceedings. iii) That the claimant be invited to instruct his legal team to examine the evidential material supporting the existence of the reasons for fearing the harm on the basis that such material was not to be disclosed to the claimant without further leave of the court.

[15]The claimant’s primary position was that the burden of proof to justify the interference with the claimant’s liberty lay on the defendant and if the defendant sought to justify the interference the claimant personally was entitled to know the evidential basis for that justification.

[16]However, after exchanges with the court, and following an indication that that position could give rise to conflict with the legitimate interests of the interested party, Ms Macdonald for the claimant agreed to investigate as a second best alternative whether if a gist of the nature of the harm was provided to the claimant albeit the subject to conditions preventing onwards disclosure, the material that was relied upon by the defendant officers as demonstrating reasonable grounds to believe that there was a likelihood of serious harm occurring to the claimant could be explored by the legal team with undertakings not to disclose it to the claimant without further order of the court.

[17]Ms Kauffmann for the interested party opposed disclosure of the gist because she contended that such a course would itself cause irremediable harm to his legitimate interests in the case. She developed that submission in a private hearing in the absence of the claimant and his legal team.

[18]Mr Fortt for the defendant opposed the interested party’s proposal of a split hearing of the issues in the judicial review but invited either the judicial review to be confined to issues that did not require disclosure of the reasons for the decision or the evidence on which the assessment was based or if there was an irreconcilable clash with the defendant’s right to justify the detention by reference to the material and the interested party’s legitimate right to maintain confidence in the material in question, the court should refuse permission to stay the proceedings on the basis that overriding public policy prevented it being tried fairly: see by analogy the decision in Carnduff v Rock

[2001] 1WLR 1786

[19]The claimant disputed either that the case should be stayed or dismissed on the basis that it was not possible to try it, or that it should be limited to issues that did not require the claimant to know the reasons for the action and the evidential basis for the assessment of the reasons. It was further submitted that the suggestion that the claim could be prevented from proceeding when it was otherwise an arguable case because of the overriding of the public interest was inconsistent with the recent guidance of the Court of Appeal in the case of R (Al Rawi and others) v The Security Service [2010] EWCA Div 482 4 May 2010.

The approach in R (Al Rawi)

[20]The issue in R (Al Rawi) was whether as a matter of principle it was open to a court in England and Wales in the absence of statutory authority to order a closed material procedure for part or even the whole of the trial of the civil claim for damages in tort and breach of statutory duty.

[21]The Master of the Rolls Lord Neuberger gave the conclusions of the court:- “[11] We have concluded that we should allow this appeal, and that we should say firmly and unambiguously that it is not open to a court in England and Wales, in the absence of a statutory power to do so or (arguably) agreement between the parties that the action should proceed on such a basis, to order a closed material procedure in relation to the trial of an ordinary civil claim, such as a trial and a claim for damages for tort or breach of statutory duty. [12] The primary reason for our conclusion is that by acceding to the defendant’s argument the court while purportedly developing common law, would in fact be undermining one of its most fundamental principles. In addition, even if it would otherwise be a legitimate development of the common law, it would be neither permissible in the light of the Civil Procedure Rules (“CPR”) nor practical in terms of effective case management or cost management to adopt the defendant’s proposals.” After a comprehensive review of a number of decisions concerned with the topics of public interest immunity, the de facto use of specially appointed advocates, special regimes where Parliament had intervened to amend the general principle, and family cases where special protective obligations were placed on the courts to safe-guard the interests of the child welfare, the court concluded as follows:

“[30] In our view, the principle that a litigant should be able to see and hear all the evidence which is seen and heard by a court determining his case is so fundamental, so imbedded in the common law, in the absence of parliamentary authority no judge should override it, at any rate in relation an ordinary civil claim unless (perhaps) all parties to the claim agree otherwise. At least so far as the common law that is concerned, we would accept the submission that this principle represents an irreducible minimum requirement of an ordinary civil trial. Unlike principles such as open justice, or the right to disclosure of relevant documents, a litigant’s right to know the case against him and to know the reasons why he has lost or won is fundamental to the notion of a fair trial. ……. [32] A litigant’s right to disclosure of documents is not a fundamental right in the same way as the right to know the evidence and argument presented to the judge and the reasons for the judge’s decision. Quite apart from this, if PII professional privilege or ‘without prejudice’ privilege is claimed in respect of a relevant document, the trial process itself is not impugned, as it is still fair: all parties are in the same position and none of them can rely on a document. That cannot be said where the trial is conducted partly, let alone wholly, through a closed material procedure. [33] Different considerations may apply where the proceedings do not only concern the interest of the parties to the litigation but they also have a significant effect on a vulnerable third party, or where a wider public interest is engaged. Thus, where the case directly impinges on the interest of a child, it may be justifiable for the court to see a document which is not seen by the parties to the proceedings. In Re K (Infant) …[1965] AC201, 240-241 Lord Devlin said “where the judge sits purely as an arbiter and relies on the parties for information, the parties have a correlative right that he should act only on information which they have had the opportunity of testing. Where the judge is not sitting purely, or primarily, as an arbiter, but is charged with a paramount duty of protecting one outside the conflict, a rule that is defined for just arbitrament cannot in all circumstances prevail”. [34] More recently, the point was expressed in these terms by Baroness Hale of Richmond in Secretary of State for the Home Department v MB [2001] 1AC 440 paragraph 58: “If…the whole object of the proceedings is to protect and promote the best interests of the child there maybe exceptional circumstances in which disclosure of some of the evidence would be so detrimental to the child’s welfare as to defeat the object of the exercise”. [35] Similarly in Roberts [2005] 2AC 738 paragraph 48 Lord Woolf CJ referred to the Parole Board having “a triangulation of interests: the board’s obligation to the prisoner and its obligation to protect society and as part of the latter of its obligation its obligation to protect third parties so far as it is practical to do so”

. As a result, even without statutory rules which permitted a closed material procedure, such procedure would he implied, have been permissible because of the public interest to which the Board had to have to have regard. At

[2005] 2AC 738

paragraph 56 Lord Woolf said, to similar effect, that the Board should have the power to consider documents which were not seen by the relevant prisoner “to enable the Board to perform its statutory duty to protect the public”. [36] In our view, such considerations cannot apply to proceedings such as those in the present case. While they may well raise points of some interest and importance to the public and in the eyes of the media, the present proceedings involve claims for damages for tort and breach of statutory duty by a number of claimants against a number of defendants (it is true that all of these defendants are emanations of the Crown, but that does not alter the nature or characterisation of the proceedings). They are proceedings in which a judge will in due course be called upon to sit ‘purely as an arbiter’ between the claimants and the defendants and no question ‘triangulation of interests’ will be involved. “[30] In our view, the principle that a litigant should be able to see and hear all the evidence which is seen and heard by a court determining his case is so fundamental, so imbedded in the common law, in the absence of parliamentary authority no judge should override it, at any rate in relation an ordinary civil claim unless (perhaps) all parties to the claim agree otherwise. At least so far as the common law that is concerned, we would accept the submission that this principle represents an irreducible minimum requirement of an ordinary civil trial. Unlike principles such as open justice, or the right to disclosure of relevant documents, a litigant’s right to know the case against him and to know the reasons why he has lost or won is fundamental to the notion of a fair trial. ……. [32] A litigant’s right to disclosure of documents is not a fundamental right in the same way as the right to know the evidence and argument presented to the judge and the reasons for the judge’s decision. Quite apart from this, if PII professional privilege or ‘without prejudice’ privilege is claimed in respect of a relevant document, the trial process itself is not impugned, as it is still fair: all parties are in the same position and none of them can rely on a document. That cannot be said where the trial is conducted partly, let alone wholly, through a closed material procedure. [33] Different considerations may apply where the proceedings do not only concern the interest of the parties to the litigation but they also have a significant effect on a vulnerable third party, or where a wider public interest is engaged. Thus, where the case directly impinges on the interest of a child, it may be justifiable for the court to see a document which is not seen by the parties to the proceedings. In Re K (Infant) …

[1965] AC201

, 240-241 Lord Devlin said “where the judge sits purely as an arbiter and relies on the parties for information, the parties have a correlative right that he should act only on information which they have had the opportunity of testing. Where the judge is not sitting purely, or primarily, as an arbiter, but is charged with a paramount duty of protecting one outside the conflict, a rule that is defined for just arbitrament cannot in all circumstances prevail”. [34] More recently, the point was expressed in these terms by Baroness Hale of Richmond in Secretary of State for the Home Department v MB

[2001] 1AC 440

paragraph 58:

“If…the whole object of the proceedings is to protect and promote the best interests of the child there maybe exceptional circumstances in which disclosure of some of the evidence would be so detrimental to the child’s welfare as to defeat the object of the exercise”. [35] Similarly in Roberts [2005] 2AC 738 paragraph 48 Lord Woolf CJ referred to the Parole Board having “a triangulation of interests: the board’s obligation to the prisoner and its obligation to protect society and as part of the latter of its obligation its obligation to protect third parties so far as it is practical to do so”

[2005] 2AC 738

[22]In my judgment, these clearly expressed principles are applicable in the present case. Although the claimant is proceeding by judicial review of this decision, as a question arises of whether policy is lawful, this is also a claim for damages for unlawful detention and breach of human rights to liberty where a young person was compulsory removed from the streets and was detained for a period of time without it being alleged that he was doing any wrong or posed a threat to others.

[23]The function of the court in determining this application is to sit as an arbiter between the parties in a claim between a citizen and the state regarding interference with the right to liberty protected by the common law. The basic position in a tort of this kind is that the defendant must justify the action and satisfy the court that what it honestly feared might happen was a contingency within the ambit of the statute and consistent with the application of the

ECHR Article 5

, and is based upon reasonable grounds.

[24]Mr Fortt submits that this is still all subject to the court’s power to strike out a claim for damages where public interest immunity prevents a fair trial. I observe that the authority on which he relies for that proposition, Carnduff v Rock, was cited to Silber J in Secretary of State for the Home Department v AE and FE

[2010] EWHC 42

Admin, where the judge found that detention was unlawful from the start and awarded damages where the case for a control order had not been sufficiently made out. If the defendant for reasons of public interest is unwilling to explain the basis for such interference then the detention cannot be defended (see also Lamothe v Commissioner of Police of the Metropolis

[1999] EWCA Civ 3034

25 October 1999). Here the defendant wishes to explain to the court the reasons for the action and the material it relied upon as giving reasonable grounds to believe that those reasons existed. A court that fairly adjudicates upon the issue between the parties will have to examine the material and explain its reason by reference to that material. The claimant is entitled to know why the claim is defended and why it is decided the way it is.

[25]These are not family proceedings where the whole purpose is to protect the interests and the welfare of the child, nor are they Parole Board proceedings where the public duty is to assess the potential danger of a serving prisoner if released into the community. Nevertheless the material upon which the defendant seeks to rely in his un-served defence to these proceedings includes material of a private nature not in the public domain which has potential adverse implications for the rights of B. In a subordinate sense, therefore, there is some triangulation of interests engaged, and where those interests include B’s Convention rights, the court is under a public law of duty pursuant to the Human Rights Act 1998 not to act contrary to those rights.

[26]Ms Kaufmann has advanced reasons why the Convention rights of B would be breached by any direction of this court requiring the defendant to even serve a gist of the nature of the harm feared, let alone the full reasons giving rise to the existence of a reasonable belief. Since judicial examination of that submission necessarily involves reference to the information that the interested parties seeks to protect, I can now unhappily see no alternative but to briefly address those submissions in a closed judgment that is not to be made available to the claimant or the claimant’s legal team without further order from the court.

Conclusions

[27]In my judgment the distinction between the gist as to the nature of the harm and the material justifying the reasonable grounds for believing that the harm would occur is a material one in the litigation in the light of the issues that arise for determination in due course. I reject this Ms Kaufmann’s submission supported to some extent by the defendant that it is unnecessary for A to be made aware of the nature of the harm that was said to justify his detention in the first place.

[28]In my judgment some indication of the broad nature of the harm is critical to the judicial determination of nearly all the issues raised in this case: whether the power was being exercised for proper purpose; whether there was a duty to protect A that would justify detention under Article 5; whether the harm feared was reasonably likely to occur in the circumstances; whether the use of the power of detention was proportionate and a legitimate means of preventing the harm occurring; how serious the harm would be if no action had been taken; whether sufficient reasons had been given at the time or subsequently explained the decision, or whether the duty to give reasons was mitigated by reason of B’s interests.

[29]Although the court is only concerned at this stage with what disclosure of the defendant’s case ought to be permitted in order to resolve the substantive issues of the hearing, there is in my judgment a reasonable likelihood that construction of Section 46 as a whole in the light of its policy, objects and purposes as well as express language means that the parents of the claimant need to know the broad kind of harm to which it was felt that he was at risk in order to avoid repetition of such a situation in the future.

[30]I do not consider that any of the alternative solutions investigated by the defendant or the interested party in any way meet the fundamental requirements of justice in a case such as this. First, the court has no power to compel the claimant to instruct his legal advisors permitting them to see material which is not supplied to him. Although such a course is open to the claimant and his legal advisors in a particular case in the exercise of their professional judgment, agreement to use such a procedure has to be free, informed and voluntary rather that the subject of a court direction or order.

[31]Having taken full instruction upon it, at the court’s request Ms Macdonald indicated that as a second best alternative to her client’s primary case the claimant was willing to instruct, and the legal team was willing to accept instruction that would permit them to examine the sensitive materials upon which the defendant relied on the question whether there was reasonable grounds for the action without it being disclosed to the claimant personally. Such consent was dependent on there being a gist of the nature of the harm that the defendant feared would be occasioned to A.

[32]Second, the use of a closed procedure and special advocates to decide, not whether further disclosure is possible, but whether the defendant’s action was justified, is objectionable in principle for the reasons set out in R (Al Rawi). I note that at [66] that the Court of Appeal doubted the special advocate procedure was available in a judicial review of a refusal to grant citizenship to claimants on national security grounds, although it pointed that in that case there was some measure of agreement between the parties that special advocates could be appointed if the circumstances required it and the principle purpose of a special advocate was to examine whether disclosure could be made without damaging a public interest.

[33]Ms Kaufmann accepted that her pleaded position was not based upon the submission that the special advocate procedure was applicable and if that avenue was to be further explored it would require a further adjournment, as to whether it was available in principle. Apart from itself contributing to the delay in costs and costs of this matter, in my judgment there will be a strong degree of likelihood that even if it was available in principle it would give rise to difficulties in practice as to the boundaries between what the special advocate could do by way of assistance and the common law principle firmly declared in R (Al Rawi). The case management and the cost effectiveness principle referred to by the Court of Appeal in [12] of this judgment would apply with equal relevance in the present case.

[34]Here a comparatively simple judicial review of the exercise of the power in respect of a particular purpose on 31 July 2009 has not proceeded through the normal course for some six months pending resolution of this question, and I see no reasonable prospect that a special advocate procedure could satisfactorily resolve the triangulation of interests in this particular case.

[35]I see no substance in the defendant’s suggestion, faintly supported at one stage by the interested party that the Carnduff principle should apply and that the claimant should be prevented from pursuing a judicial review application that was otherwise arguable as I find it to be. If such a solution could have been available in principle it is extremely surprising that it was not the first line of defence of the defendants in R (Al Rawi), a case where an even more sensitive public policy conflict arose namely the protection of national security in the prevention of terrorism, and the critical importance of protection of sources of information whereby the security services were able to perform their function. Further, if a partially closed hearing is inconsistent with the principle of open justice, in my judgment a court deciding to refuse to have a hearing at all would be an even greater violation of those principles.

[36]I see no merit in the interested party’s suggestion that the issue in this judicial review could be split into general and specific issues. I consider it highly unlikely that any judicial evaluation of whether the power had in principle been lawfully been exercised for the purpose of preventing the particular harm that the gist would identify would run through most of the claimant’s grounds in any event. In my judgment it is not possible to have an abstract assessment of the necessity of detention under Article 5 without some indication of the kind of harm that it was feared might be suffered. At present the claimant is unaware of the defendant’s proposed basis for justification of the detention in pursuit of its duty to protect the claimant, but I consider it highly likely that any exploration of that defence at least required the claimant and others to know what it was being protected from by the intervention in question.

[37]Accordingly, I consider that the only realistic candidate for resolving the tension between the different interests in the case, appears to me to be the proposals that the claimant considered and agreed to.

[38]In my judgment, there is a legitimate distinction between the claimant being informed of the nature of the harm that it was feared he would be subjected to and the specific information on which the reasonable grounds to fear that harm was based. For reasons I have sought to set out, the claimant and his parents need to know why he was being protected, what he was being protected from and why that protection took the particular form it did. If that were made clear, the sufficiency of the material to justify the reasonable belief is a matter of legal submission and analysis on which in this particular case, the claimant can give little by way of instructions. The claimant would normally be entitled to see or hear this material for himself, and I certainly do not rule out that at some future time a judge might conclude that further information upon which the assessment of risk was based could be disclosed without disproportionate damage to B’s interests and/or that common law principles require it.

[39]For the present the package of measures proposed by the court including the claimant’s legal team agreeing to look at the evidential support for the exercise of the power without disclosing it to their client is a possibility that can and should be explored. It may resolve the whole or a substantial part of this judicial review by one means or another. It is based on consent and that was an exception that the Court of Appeal was prepared to accept may exist. It protects the claimant personally from any suggestion that he may have disclosed sensitive material to others. He will have some idea of why the police were acting as a result of the gist he will receive. He will have the benefit of his legal team analysing the sufficiency of their reasonable grounds for believing facts engaging the exercise of the power and making informed submissions to the judge about it.

[40]As part of her grounds of opposition Ms Kaufmann suggested at one stage that there was no material difference between the gist of the nature of the harm and the detailed information that supported the reasonable grounds to suspect that harm would eventuate. I reject that submission. For reason which I give in closed judgment some of the sensitive material is capable of attracting a far greater weight in terms of B’s interests, then any consequences arising simply from the gist. Accordingly, at the conclusion of the hearing I indicated the outcome, and gave very brief reasons that I indicated would be amplified in a written judgment to be handed down promptly with a closed supplementary judgment.

[41]Since it was plain Ms Kaufmann wished to pursue and application for permission to appeal to the Court of Appeal I recognised that the gist that the court proposed should be given to the claimant would be set out in the first schedule to the closed judgment pending any further order of the court, and that the order should be suspended for a short period of time to enable B to apply for permission or extension of the stay pending permission to be obtained elsewhere.

[42]I briefly outlined the orders I proposed to make at the end of the oral hearing and indicated reasons would follow. I indicated that I proposed to grant permission to the claimant to bring this claim. For these reasons I direct as follows:- i) The defendant do serve its summary grounds subject to the deletion set out in the first schedule to the first judgment and do provide the gist set out in that schedule by way of addition of paragraph 8 of the document of 16 June 2010 entitled Summary of Background Information. ii) The claimant shall not disclose the gist to be provided to him to third parties without the prior authority of the court or further order. iii) On the claimant’s legal advisors undertaking in writing that the schedule of confidential material and the excised parts of the defendant’s summary grounds will not be disclosed by them to the claimant in whole or in part directly or indirectly pending the determination of the application or further order of this court, the defendant shall provide such material to the legal advisors. iv) The existing orders of Mr Randall QC remain in force subject to the above. v) Permission is granted to bring this claim.