R (K, A, B) v Secretary of State for Defence

The Court of Appeal has today handed down judgment in R (K, A, B) v Secretary of State for Defence [2016] EWCA Civ 1149, CA. The Claimants brought a series of public law claims for damages and other relief in relation to what they alleged were threats to them arising from their alleged role assisting the UK armed forces in Afghanistan between 2008-2013. The SSD advanced a policy of “neither confirm nor deny” in relation to the claims. The Court of Appeal, overturning the Divisional Court, found that the claims Article 6 ECHR. It found that the minimum disclosure requirements set out in SSHD v AF (No 3) [2010] 2 AC 269 were therefore applicable. This was so notwithstanding the fact that the Administrative Court had ordered that the trial should proceed on the basis of a Closed Material Procedure (‘CMP’) under section 6 of the Justice and Security Act 2013. The decision means that the Divisional Court must now reconsider the ambit of disclosure in the CMP before it. The Court of Appeal nonetheless rejected the submission that the claimants were (even on their own case) within the jurisdiction of the United Kingdom when the alleged breaches of Articles 2, 3 and 8 occurred. The Court declined to apply the Al-Skeini exception. The Court of Appeal also handed down a closed judgment in support of its reasoning.

Kieron Beal QC appeared as a special advocate.