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

In Haralambous, the claimant sought judicial review of a magistrate’s order for a warrant under section 8 of the Police and Criminal Evidence Act 1984 (‘PACE’), and of the Crown Court’s order under section 59 of the Criminal Justice and Police Act 2001 (‘CJPA 2001’). Those (and other) legislative provisions expressly enabled the magistrates’ court and the Crown Court to rely on CLOSED material: [26]-[27], [37], [40], [43]. But those provisions did not address the position of the High Court on an application for judicial review. It was common ground that the JSA 2013 was inapplicable (because the proceedings concerned a criminal cause or matter and/or the grounds for withholding the material did not relate to national security) ([11]).

The Supreme Court held that “judicial review can and must accommodate a closed material procedure, where that is the procedure which Parliament has authorised in the lower court or tribunal whose decision is under review” ([59]), thus expanding the exceptions that had been identified in Al Rawi.

In Haralambous, the court considered the situation was analogous (albeit not precisely so) to that in Bank Mellat v HM Treasury (No.1) [2013] UKSC 38, [2014] AC 700 ([54] and [56]). In Bank Mellat, the Supreme Court held that it had the power to adopt a CMP on appeal in circumstances where the courts below had adopted a CMP when considering applications to set aside financial restriction orders made pursuant to s.63 of the Counter-Terrorism Act 2008, pursuant to express statutory powers under that Act. The power was derived from s.40(2) of the Constitutional Reform Act 2005, which states that “an appeal lies to the court from any order or judgment of the Court of Appeal in England and Wales in civil proceedings”, read together with s.40(5) of that Act, which provides that the Supreme Court “has power to determine any question necessary to be determined for the purposes of doing justice in an appeal to it under any enactment”. The term “any judgment” in s.40(2) extends to a judgment which is wholly or partly closed, and it is implicit that for an appeal against such a judgment to be effective, the hearing before the Supreme Court would involve, at least in part, a CMP.

In Haralambous, at [54], Lord Mance DPSC (with whom all members of the Court agreed) noted “the alternative possibilities to a closed material procedure identified by Lord Neuberger PSC in Bank Mellat”:

“If a closed material procedure was not permissible, the alternative analyses were that (a) the appeal could not be entertained (compare Carnduff v Rock [2001] 1 WLR 1786) or (b) the Supreme Court could consider the closed material in open court, or (c) the court could determine the appeal without looking at the closed material (compare the Concordia case [2018] Bus LR 367), or (d) the court would be bound to allow the appeal or (e) the court would be bound the dismiss the appeal (compare the Rossminster case [1980] AC 952). Lord Neuberger of Abbotsbury PSC, speaking for the majority, said ... that analysis (a) ran contrary to section 40(2), analysis (b) would wholly undermine Part 6 of the [Counter Terrorism Act 2008], analysis (c) ‘would be self-evidently unsatisfactory and would seriously risk injustice, and in some cases it would be absurd’ (p738, para 41), and each of analyses (d) and (e) was ‘self-evidently equally unsatisfactory’: p.738, para 42.”

Lord Mance observed that judicial review “is in origin a development of the common law, to ensure regularity in executive and subordinate legislative activity and so compliance with the rule of law, but it is now regulated by the Senior Courts Act 1981” ([56]). At [57], Lord Mance said:

“Although there are differences between judicial review and an appeal in the normal sense of that word, many of the considerations which were of weight in the Bank Mellat case ... on an appeal from lower courts conducting closed material procedures are also of weight in relation to judicial review of lower courts conducting such procedures. In Bank Mellat, a determination by the Supreme Court on a basis different from that required and adopted in the courts below would have been self-evidently unsatisfactory, risk injustice and in some cases be absurd. So too in the present context it would be self-evidently unsatisfactory, and productive potentially of injustice and absurdity, if the High Court on judicial review were bound to address the matter on a different basis from the magistrate or Crown Court, and, if it quashed the order, to remit the matter for determination by the lower court on a basis different from that which the lower court had quite rightly adopted and been required to adopt when first considering the matter. ...”

Lord Mance cited subsections (2A), (3C), (5) and (5A) of s.31 of the Senior Courts Act 1981 ('the SCA 1981'). He considered that “subsections (5) and (5A), read together, only work on the basis that it is open to the High Court to consider and, where appropriate, itself give effect to the decision which the lower court or tribunal should have reached, if there is only one such decision which it could have reached” ([57]). Those subsections “will not work” if the High Court cannot by a CMP have regard to CLOSED material. Subsections (2A) and (3C) also “postulate that the High Court will be considering the outcome on the same basis as the lower court or tribunal” ([58]).

In light of those statutory provisions (i.e. s.31 of the SCA 1981), and having considered the alternative possibilities, Lord Mance reached the conclusion I have quoted in paragraph 20 above. He observed that the Supreme Court in Al Rawi had not directed its attention to this very special situation, which was similar to the two exceptions it did identify ([59]). Lord Mance concluded at [59]:

“I consider that the scheme authorised by Parliament for use in the magistrates’ court and Crown Court, combined with Parliament’s evident understanding and intention as to the basis on which judicial review should operate, lead to a conclusion that the High Court can conduct a closed material procedure on judicial review of a magistrate’s order for a warrant under section 8 of PACE or a magistrate’s order for disclosure, or a Crown Court judge’s order under section 59 of the CJPA. I add, for completeness, that even before judicial review was regulated by statutory underpinning, I would also have considered that parallel considerations pointed strongly to a conclusion that the present situation falls outside the scope of the principle in the Al Rawi case and that a closed material procedure would have been permissible on a purely common law judicial review.”