AC-2025-LON-002497 - [2025] EWHC 2842 (Admin)

Although all parties seek a CMP, no party has made an application for a s.6 declaration. The Claimant seeks such a declaration, but could not apply for one because, without access to the material withheld by the Defendant, he would not have been able to comply with CPR 82.22. The Defendant and the GHROA have not applied for a s.6 declaration because of the stance they have taken on the jurisdictional issue, and the Secretary of State has taken a neutral position.

The Claimant submits that, if the court is satisfied that the conditions in ss.6(4) and (5) are met, it would be in the interests of speed and efficiency for the court to make a s.6 declaration of its own motion. Subject to any representations a special advocate may make on sight of the CLOSED material, the Claimant anticipates that the need to consider the CLOSED RO Ruling, and the content of that ruling, ought to be sufficient to enable the court to make a declaration. It is common ground that a PII exercise can be no substitute for a CMP in the circumstances of this case.

For the reasons I have given in my CLOSED judgment, I am satisfied that the conditions in ss.6(4) and (5) are met. Although it is unusual for the court to make a s.6 declaration of its own motion, the court has the power to do so, and in the circumstances of this case I have sufficient material to enable me to reach a clear conclusion that the Defendant would be required, were it not for the possibility of a claim for PII, to make disclosure of “sensitive material” in the course of the proceedings. I am satisfied that it is in the interests of the fair and effective administration of justice in the proceedings to make a s.6 declaration. It would be self-evidently unsatisfactory, would seriously risk injustice, and indeed it might be considered absurd (cf Bank Mellat and Haralambous), if the CLOSED RO Ruling were to be subject to PII, with the consequence that the court would have to consider this challenge to the RO Ruling without considering the Defendant’s CLOSED reasons.

I bear in mind that at this stage I have not heard from any special advocates. However, in accordance with s.7 of the JSA 2013, the court must keep the s.6 declaration under review and may revoke it at any time. So the special advocates will have an opportunity to seek to revoke the s.6 declaration, if any of them consider it appropriate to do so.