JHA LLP | London Tax Disputes Solicitors & Barristers

Iran sanctions: closed material procedure allowed by High Court

09 January 2015

Author: JHA

The Administrative Court made a declaration under s 6 of the Justice and Security Act 2013 that a closed material procedure could be used in the judicial review of a decision of the Secretary of State to propose the addition of the Claimants as designated individuals under EU sanctions.

The Claimants were added to the list of designated individuals under an EU Decision and Regulation on the proposal of the Secretary of State to the EU Council on the basis that they were “senior members” of the Islamic Republic of Iran Shipping Lines. The IRISL was a designated entity under an earlier EU Decision and Regulation enacted to restrict or prevent Iranian nuclear proliferation. The IRISL and the Claimants successfully challenged their designations before the General Court of the European Union.

The Claimants issued a claim for judicial review seeking a declaration that the proposal to list them was unlawful and damages for losses suffered as a result of the listing. The Secretary of State made an interlocutory application for a declaration under s 6(2) of the Justice and Security Act 2013 that closed material procedure could be used in the case.

The judge made the declaration as the two conditions in ss 6(4) and 6(5) were met and it was an appropriate case for the court to exercise its discretion under s 6(3). There was sensitive material (being damaging to national security if disclosed) which was disclosable, subject to any PII application; the detail of the material available to the decision-maker was essential to an evaluation of the substantive case; and there was no practicable alternative to a closed material procedure if the case were to be fairly tried.

The court emphasised that the decision under review was that taken by the Secretary of State as distinct from the decisions of the EU Council and that it did not follow that because the Council’s decisions had been wrong that the Secretary of State’s decision was wrong on the basis of the different material before him. It rejected the Claimants’ submission that the Secretary of State could not seek to support his decision on the basis of material which he did not share with the Council, the Claimants or the General Court.

The judge also noted that CPR r 82.23(4) could not be read literally and that it should be interpreted as meaning that “the hearing of the application shall so far as necessary take place in the absence of the claimants, their lawyers and the public” and that this was only necessary when submissions referred to closed material.

R (on the application of Sarkandi and others) v Secretary of State for Foreign and Commonwealth Affairs [2014] EWHC 2359 (Admin), 11 July 2014

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