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

Following Al Rawi, Parliament enacted the JSA 2013, which enables the court to adopt a CMP in “relevant proceedings” (as defined in s.6(11)) where certain conditions are met. The definition of “sensitive material” in s.6(11) is narrowly defined to mean “material the disclosure of which would be damaging to the interests of national security”. Consequently, a CMP under the JSA 2013 is not available in proceedings in a criminal cause or matter: see R (Belhaj) v DPP (No.1) [2018] UKSC 33, [2019] AC 593. Nor is it available to protect material which is required to be withheld only on public interest grounds other than national security.

Section 6(1) of the JSA 2013 provides:

“The court seised of relevant civil proceedings may make a declaration that the proceedings are proceedings in which a closed material application may be made to the court.”

Such a declaration (‘a s.6 declaration’) may be made on the application of the Secretary of State (whether or not the Secretary of State is a party), or any party, or of the court’s own motion: s.6(2) of the JSA 2013. And it must identify the party or parties to the proceedings who would be required to disclose the sensitive material (referred to in the JSA 2013 as “a relevant person”): s.6(8) of the JSA 2013. Once a s.6 declaration has been made, the proceedings are known as “section 6 proceedings”: ss.8(1) and 14(1) of the JSA 2013.

The court has power to make a s.6 declaration if the two conditions in ss.6(4) and (5) are met “in relation to any material that would be required to be disclosed in the course of the proceedings” (i.e. a sample of relevant CLOSED material): ss.6(3) and (6) of the JSA 2013. Sections 6(4) and (5) provide:

“(4)

The first condition is that –

(a)

a party to the proceedings would be required to disclose sensitive material in the course of proceedings to another person (whether or not another party to the proceedings), or

(b)

a party to the proceedings would be required to make such a disclosure were it not for one or more of the following –

(i)

the possibility of a claim for public interest immunity in relation to the material,

(ii)

the fact that there would be no requirement to disclose if the party chose not to rely on the material,

(iii)

section 56(1) of the Investigatory Powers Act 2016 (exclusion for intercept material),

(iv)

any other enactment that would prevent the party from disclosing the material but would not do so if the proceedings were proceedings in relation to which there was a declaration under this section.

(5)

The second condition is that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration.”

The court is required to keep a s.6 declaration under review, and must undertake “a formal review of the declaration once the pre-trial disclosure exercise in the proceedings has been completed”: s.7(2) and (3). At the formal review, if the court considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings, it must revoke the s.6 declaration; and it may revoke it at any time, if it reaches that conclusion: s.7(2) and (3).

Section 8 of the JSA 2013 provides for the creation of rules of court which govern applications for the withholding of sensitive material in section 6 proceedings, other than from the court, any person appointed as a special advocate and, if the Secretary of State is not the relevant person but is a party, the Secretary of State. Various other provisions of the JSA 2013 also provide for the creation of rules of court. CPR Part 82 contains the relevant procedural rules governing section 6 proceedings. It is a detailed code. In section 6 proceedings, the relevant person “may not rely on sensitive material at a hearing on notice unless a special advocate has been appointed to represent the interests of the specially represented party”: CPR 82.13(1)(b).