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

The claim seeks judicial review of two linked decisions made by Sir Charles Haddon-Cave, Chair of the Independent Inquiry relating to Afghanistan (‘the Inquiry’), namely: (i) the ‘Ruling on Approach to Green Hearing Restriction Orders’ (‘the Approach Ruling’); and (ii) the ‘Ruling on Application for Green Hearing Restriction Orders (‘the RO Ruling’). The reasons for the RO Ruling were given in OPEN and CLOSED rulings. The question whether to grant or refuse permission to apply for judicial review on any or all grounds has not yet been considered.

This case management hearing was listed by the Order of Chamberlain J dated 8 September 2025 to consider, among other matters:

“OPEN and CLOSED submissions in relation to:

(a)

The jurisdictional basis for any closed material procedure;

… [and]

(e)

any further directions necessary (including as to the appointment of any special advocate).”

The first of those matters raises a novel issue regarding the interplay between the statutory power to order a closed material procedure (‘CMP’) pursuant to the Justice and Security Act 2013 (‘the JSA 2013’) and the separate jurisdiction to do so identified by the Supreme Court in R (Haralambous) v Crown Court of St Albans [2018] UKSC 1, [2018] AC 236.

A preamble records that the Order was made upon:

“the Court deciding that, in light of the agreement of the parties that the determination of permission will require consideration of CLOSED material, the Court may receive CLOSED material pursuant to the inherent jurisdiction for the sole purpose of deciding procedural issues in advance of any consideration whether to grant permission to apply for judicial review.”

Accordingly, I held an OPEN hearing attended by all the parties and interested parties, and then a short CLOSED hearing from which the Claimant and the Afghan Families, as well as the public, were excluded.

The parties agree (at least provisionally, pending the appointment of any special advocates) that the Court should order a CMP. However, an order for a CMP will not be made simply because the parties consent. In accordance with the principle of open justice, ordinarily the administration of justice takes place in public. Any derogation from the principle of open justice is a decision for the court.

The parties disagree as to whether such an order should be made pursuant to (i) the JSA 2013; or (ii) applying Haralambous; or (iii) on both bases. In short, the Defendant (supported by the Green Hearing Restriction Order Applicant(s), ‘GHROA’) submits that a CMP should be ordered under the Haralambous jurisdiction. Whereas the Claimant contends that if and to the extent that the statutory basis in the JSA 2013 enabling the adoption of a CMP is available, the court does not have a free choice as to which jurisdictional basis to adopt. It must apply the JSA 2013, albeit the court may, in parallel, use the Haralambous jurisdiction to protect material which does not fall within the definition of “sensitive material” in the JSA 2013.

For the reasons given in this judgment, supplemented by a separate CLOSED judgment, I will make a declaration under s.6 of the JSA 2013 that the proceedings are proceedings in which a closed material application may be made to the court; and, further, that a closed material application may be made pursuant to the inherent jurisdiction. In other words, I conclude that a CMP should be adopted on both bases. I will also make directions for the appointment of special advocates to represent the interests of each excluded party.