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

There have been relatively few cases invoking the Haralambous jurisdiction, and most have been warrantry cases.

In Competition and Markets Authority v Concordia International Rx (UK) Ltd [2018] EWCA Civ 1881, [2018] Bus LR 2452, the Court of Appeal applied Haralambous in the context of an appeal against a warrant issued under s.28 of the Competition Act 1998. There is no reason to think that the CLOSED material would have been “sensitive material” as defined in s.6(11) of the JSA 2013. So the way in which the Haralambous and JSA 2013 jurisdictions interact was not in issue.

In R (da Silva) v Sir John Mitting (sitting as chairman of the Undercover Policing Inquiry) [2019] EWHC 426 (Admin), Supperstone J adopted a CMP ([9]) in the context of a judicial review of a ruling made by the chairman of an inquiry set up pursuant to the Inquiries Act 2005 (‘the 2005 Act’) . It is clear from his order dated 8 October 2018 that the CMP was adopted by consent. It seems likely that he took the view that the Haralambous jurisdiction extended to judicial review of a ruling made by a statutory inquiry. However, there is no reference to Haralambous on the face of the order or judgment and it is possible that he considered such jurisdiction existed in light of the parties’ agreement. Supperstone J did not make a s.6 declaration and, having regard to the basis for the restriction orders ([31]), it seems likely that such a declaration could not have been made, as the CLOSED material was not “sensitive material” within the meaning of the JSA 2013. In the absence of analysis of the jurisdictional basis for adopting a CMP in that case, and given the likelihood that the JSA 2013 was of no relevance in da Silva, I do not consider that it is of any assistance on the interaction between the Haralambous and JSA 2013 jurisdictions. But it provides some support for the proposition that the Haralambous jurisdiction extends to statutory inquiries.

In R (Privacy International) v Investigatory Powers Tribunal [2019] EWHC 3285, in the context of a judicial review of a decision made by the Investigatory Powers Tribunal regarding sharing of bulk communications data and bulk personal data with foreign agencies, Supperstone J directed the appointment of a special advocate “under the court’s inherent power identified in Haralambous” ([8]). He observed at [4]:

“It is not in dispute that the court has inherent jurisdiction to adopt a closed material procedure in this claim: R (Haralambous) v Crown Court of St Albans [2018] AC 236.”

And then continued at [8]:

“I expressly leave open the question that has been raised as to whether if this claim proceeds the basis of the CMP should be the inherent power or s.6 of the JSA.”

The claim was heard by a Divisional Court and CLOSED material was considered in theCMP directed by Supperstone J, pursuant to the Haralambous jurisdiction: [2022] EWHC 770 (QB), [2022] 4 WLR 75, at [5]-[6] and [79]. The procedure he directed replicated that which would have applied if the special advocate had been appointed under the JSA 2013. It is apparent that material was withheld from disclosure to the claimant in the interests of national security ([5]). However, the argument as to the proper jurisdictional basis for adopting a CMP that Supperstone J had expressly left open was not the subject of submissions or of any decision. So this authority, too, although more pertinent because it is a civil judicial review relating to national security, leaves the issue open.

In Secretary of State for Defence v Persons Unknown [2023] EWHC 2999 (KB), Chamberlain J considered CLOSED material in the context of a claim for a super-injunction contra mundum (i.e. against the world) preventing the disclosure of information about the compromise of a highly sensitive dataset. He determined that the JSA 2013 was inapplicable because the applicant was the only party. There was no “excluded party” whose interests a special advocate could be appointed to represent and CPR 82.13(1)(b) precludes reliance on sensitive material unless a special advocate has been appointed. In determining that, in these circumstances, it was necessary to adopt a bespoke CMP (replicating insofar as necessary and relevant the safeguards in CPR Part 82), and that doing so promoted rather than undermined the objects of the JSA 2013, Chamberlain J said at [22]:

“I have borne in mind that it is in general undesirable, and in most circumstances impermissible, for the court to create under the inherent jurisdiction bespoke regimes for considering CLOSED evidence. In general, the JSA 2013 occupies the ground and the court should be slow to supplement it.”

Haralambous has been extended beyond warrantry cases to encompass judicial review of the Investigatory Powers Tribunal and (it seems: see da Silva) a statutory inquiry. The parties are at one that, subject to consideration of how it interacts with the JSA 2013, the Haralambous jurisdiction is available in this case. I agree. Although I do not consider that the Inquiry falls within the definition of “court or tribunal” in s.31 of the SCA 1981 (see paragraph 40 below), Lord Mance’s reasoning in Haralambous applies with equal force to judicial review of a judicial ruling made by the chair of a judicial inquiry held pursuant to the Inquiries Act 2005 (‘the 2005 Act’).