Fahad Ansari, R (on the application of) v Chief Constable of North Wales Police [2025] EWHC 3330 (Admin)
NCN: [2025] EWHC 3330 (Admin)Case No AC-2025-LON-003211
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 24 October 2025
Strand
London WC2ALL
Before
MR JUSTICE CHAMBERLAINTHE KINGon the application of
Between
FAHAD ANSARIClaimantCHIEF CONSTABLE OF NORTH WALES POLICEDefendantHUGH SOUTHEY KC, RABAH KHERBANE and DRISHTI SURI appeared for ClaimantGEORGINA WOLFE appeared for First DefendantDOMINIC LEWIS appeared as a Special AdvocateJUDGMENTDigital Transcription by Epiq Europe Ltd,Lower Ground, 46 Chancery Lane, London WC2A 1JEWeb: www.epiqglobal.com/en-gb/Email: civil@epiqglobal.co.uk(Official Shorthand Writers to the Court)This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
[1]MR JUSTICE CHAMBERLAIN: By this claim, the claimant, an experienced solicitor specialising in national security and human rights work, challenges the decisions taken by officers serving under the Chief Constable of the North Wales Police to question and detain him and to download and inspect the contents of his mobile phone pursuant to Schedule 7 to the Terrorism Act 2000.[2]The background to the case, including the profile of the claimant's clients, was set out in an earlier judgment of mine on 6 October. The claimant's clients include Hamas, which is proscribed under the 2000 Act. In the same judgment, I explained that the interim relief sought in this case was an order preventing the Chief Constable and her officers from accessing and searching the downloaded content from the claimant's phone, 95 per cent of which he says is confidential and privileged.[3]At the hearing on 6 October, the Chief Constable invited me to refuse the application for interim relief on the basis that there was no serious issue to be tried. The power conferred by Schedule 7 did not require reasonable suspicion, though it did have to be exercised on a reasonable basis proportionately and in good faith: see Miranda v Secretary of State for the Home Department [2016] EWCA 6; [2016] 1 WLR 1505 at [112].[4]Ms Georgina Wolfe for the Chief Constable submitted that there was no requirement to tell a person stopped under Schedule 7 why he was being stopped and that there was also no obligation to provide such an explanation even once a claim had been filed. In this case, no explanation could be given in open because that would tend to reveal whether the stop had been based on intelligence or other information, and that itself was a CLOSED matter. It was for the claimant to identify a basis for contending that the decision to exercise the power was unlawful.[5]In my judgment on 6 October, I rejected that argument because it would deprive the requirement that the power be exercised on a reasoned basis and proportionately of any practical means of enforcement and because it would be contrary to the scheme of the Convention which requires a public authority to justify any interference with Convention rights. I gave directions for the Chief Constable and the Secretary of State, the second defendant, to make applications for a declaration under section 6 of the Justice and Security Act 2013 and applications to withhold sensitive material pursuant to section 8 of that Act. Applications under ss. 6 and 8 of the 2013 Act were made by the Chief Constable in accordance with my directions on 14 October. The Secretary of State filed materials supporting it on 17 October. Although this latter material was not served in accordance with my directions, no special advocate had been appointed by then so the lateness caused no prejudice and I admitted the late evidence.[6]The claimant did not agree to the appointment of a special advocate and declined to nominate one from the list. However, as the special advocate has explained in a note, which I hope will shortly be made open in whole or in part, the statutory regime under the 2013 Act and Part 82 of the Civil Procedure Rules does not permit an excluded party to waive the right to a special advocate. The Rules envisage the appointment of a special advocate as a precondition to reliance on CLOSED material. The special advocate is typically appointed before a decision under section 6 is made precisely so that he or she can make submissions to the court in the interests of the excluded party about whether such a declaration should be made.[7]A special advocate, Mr Dominic Lewis, has been appointed. He received the CLOSED material on Tuesday, 21 October and was able to digest and make helpful written submissions on it in a very short time. He was also able to agree with the defendants an open version of one of the key documents recording what happened when the claimant was stopped. That has now been disclosed to the claimant in open.[8]At the hearing yesterday, 23 October, Mr Hugh Southey KC for the claimant opposed the making of a section 6 declaration whilst acknowledging that he was not in a position, having not seen the CLOSED material, to make detailed submissions on whether the conditions for the making of such a declaration were met. Mr Lewis did make detailed submissions and outlined the various means other than a CLOSED material procedure by which the case could in principle be litigated.[9]I ruled yesterday that the conditions for the making of a declaration under section 6 of the 2013 Act were met. There was centrally relevant sensitive material which would otherwise inevitably be the subject of a public interest immunity application. The application would be very likely to succeed. The court would then have no way of interrogating the reasons for the challenged decisions. This would mean either that the case could not be tried at all (see Carnduff v Rock [2001] EWCA (Civ) 680; [2001] 1 WLR 1786) or that the defendant would win by default: see the discussion in the judgment of the Supreme Court in R (on the application of Haralambous) v St Albans Crown Court [2018] UKSC 1; [2018] AC 236. Neither of these outcomes would be fair or would promote the interests of justice.[10]The making of a declaration under section 6 does not, of course, mean that a defendant can simply keep in CLOSED whatever they do not wish to disclose. Anything which they seek to withhold must be the subject of an application under section 8 of the 2013 Act. The special advocate can make submissions that documents or parts of documents could be disclosed in open without damaging national security, or that Article 6 of the European Convention on Human Rights requires disclosure of further material irrespective of any such damage, see Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28; [2010] 2 AC 269 (“AF (No. 3)”).[11]It has not been possible to conduct a full disclosure exercise at this stage given the timing of this hearing. There is also a live dispute about the applicability of the disclosure standard in AF (No 3). This means that it is not possible to be confident that the defendants have disclosed everything which their duty of candour requires them to disclose in open, even at this permission stage. Ms Wolfe, for the Chief Constable, initially submitted that I could and should refuse permission in any event because the CLOSED material showed, she said, “that the claim was not arguable”.[12]In my judgment, however, it would be unfair to do that in circumstances where further open disclosure may, and indeed almost certainly will, be required. There are few situations in which a court could properly conclude that there is nothing a party could say to answer a CLOSED case. In my judgment, this is not one. That means that there are two options. One is to adjourn the question of permission to be determined after the disclosure process has been completed; the second is to order a rolled-up hearing. In deciding between these two options, I have applied the approach I set out in R (Al-Haq) v Secretary of State for Business and Trade [2025] EWHC 173 (Admin), at [34] to [35] and summarised in the Administrative Court Judicial Review Guide at paragraph 9.2.1.5.[13]On the facts of this case, which concern the legality of a discrete set of decisions, Ms Wolfe conceded that a rolled-up hearing would not take significantly longer than a permission hearing and nor would preparing for it be significantly more onerous than preparing for a permission hearing. In these circumstances, a rolled-up hearing seems to me to be the most convenient and sensible procedural route by which to determine this application for judicial review.[14]However, as I have said, the hearing will have to take place after the completion of the disclosure process. In this case, that process will involve the resolution of a legal dispute as to the applicability of the AF (No 3) disclosure standard in cases of this kind. That is a complex legal issue which will be important not only for this case but generally. This means that the rolled-up hearing is not likely to take place for several months. It is in that context that the application for interim relief falls to be determined.[15]Mr Southey for the claimant submits that there is no evidence that there is any real reason why the examination of the downloaded material needs to be undertaken before any rolled-up hearing. He points out that the open version of the document describing what happened during the stop expressly envisages that, because the material includes a high quantity of privileged content, it will in any event take a considerable time for this to be sifted by independent counsel in accordance with the procedure set out in the Code of Practice Examining Officers and Review Officers under Schedule 7 to the 2000 Act.[16]Mr Southey also makes criticisms of the process by which independent counsel will sift the downloaded material. These criticisms are relevant both to the strength of his ground four, which challenges the convention compatibility of the regime for handling privileged material under the Code, and to the application for interim relief.[17]I have carefully considered all these points and those made in support of the application for interim relief by the special advocate in CLOSED. My conclusions are these.[18]First, although I have directed a rolled-up hearing, I approach the application for interim relief on the assumption that there is a serious question to be tried on each of the claimant’s grounds.[19]Second, in judging the merits, I have had regard to the CLOSED material but borne carefully in mind that the disclosure process is not yet complete. The material I have seen enables me to say that the defendants have a substantial prima facie answer to the claim which will need to be probed further following completion of the disclosure process. The position is therefore similar to that in R (FTDI Holding Ltd) v Chancellor of the Duchy of Lancaster [2025] EWHC 241 (Admin) and R (on the application of Ammori v Secretary of State for the Home Department [2025] EWCA Civ 848. In both of those cases, and here, it was and is possible to have regard to the CLOSED material to inform the decision on interim relief even though a full process under section 8 of the 2013 Act remains to be completed.[20]Third, the CLOSED material gives a further insight than is available from the open material into the likely duration of the sift process undertaken by independent counsel and into the reasons why it is said that there is a public interest in passing the sifted material to the examining officers sooner rather than later.[21]Fourth, I have considered carefully the criticisms made of the independent counsel process without forming a concluded view about the merits of ground four. Some of the criticisms made by Mr Southey seem to me, at this early stage, to be overstated. The fact that the claimant had no role in selecting counsel concerned does not seem to me to be a major failing. The Chief Constable has in this case selected a KC to perform the task. This is an unusual protection and gives a level of assurance over and above that required by the Code. There is no reason to doubt that the KC selected, Ms Rachel Spearing, is properly qualified for the role. The fact that under the Code search terms are decided by the Police seems to me likely to be inevitable in a process designed to investigate individuals who may be involved in terrorism.[22]Although the process for deciding which material is privileged can sometimes be informed by contextual matters, Mr Southey, in my judgment, underestimates the ability of a skilled legal professional to discern the context from the communication itself, if necessary, with the assistance of material generated by further searches. It is worth pointing out at this stage that the claimant was given the opportunity to submit a list of search terms or to identify clients, but he has chosen not to do so.[23]Mr Southey criticised the last sentence of paragraph of 70(d) of the Code as suggesting that material might be passed to the examining officers without having first been sifted by independent counsel. Ms Wolfe and Ms Davidson both submitted that this was not the correct way to read that sentence.[24]I do not have to reach any concluded view about that for the time being because Ms Wolfe also expressly confirmed that the procedure envisaged here did not involve any material being passed to examining officers unless and until Ms Spearing had considered it and confirmed that, in her view, it was not privileged.[25]If privileged material is inadvertently passed to examining officers, paragraph 72 of the Code makes provision for what is to happen next. It provides as follows: “Where an examining officer or any other officer involved in the Schedule 7 examination inadvertently sees protected material, measures must be put in place to ensure that the protected material is not taken account of, either in the course of making a determination under paragraph 2 or 3 of Schedule 7 or in any subsequent legal proceedings, or any executive action.”26. That also provides a degree of protection in the unlikely event that, following the sift, material which is protected is passed to examining officers.27. I note that in the case of R (McKenzie) v Director of the Serious Fraud Office [2016] EWHC 102 (Admin); [2016] 1 WLR 1308, at [34], Burnett LJ, with whom Irwin J agreed, said this: “In my judgment, a seizing authority has a duty to devise and operate a system to isolate potential LPP material from bulk material lawfully in its possession, which can reasonably be expected to ensure that such material will not be read by members of the investigative team before it has been reviewed by an independent lawyer to establish whether privilege exists. That approach to LPP material imports the necessary rigour required by the law for its protection in this context.”28. That was said in the context of a claim against an investigating authority considering potentially privileged material in the course of an investigation. It is worth pointing out that that case concerned the procedure for handling material before independent counsel looked at it. But there is no reason to suppose that the relevant test would be different when considering the procedure to be undertaken by independent counsel herself. In my view, on the entirety of the evidence I have seen, there is nothing to suggest that this test will not be met here.29. Fifthly, I have applied the same approach to interim relief as set out in FTDI and the Court of Appeal’s decision in Ammori at [29] to [32]. There is, in my view, no relevant difference between these two formulations of the test for interim relief. I bear in mind the public interest in allowing a public authority to perform its statutory functions. That interest must be accorded great weight in this case, both because of the statutory context—the power here is conferred for the purposes of investigating and disrupting terrorism—and because of the CLOSED evidence in this case.30. In my judgment, this public interest firmly outweighs the small risk that privileged material will be passed to the examining officer, having regard to the safeguards in place in this case. For these reasons, the application for interim relief is refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: civil@epiqglobal.co.uk