9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) "51. It may be useful at this juncture to deal with two features of the Respondent's evidence which arose on a number of occasions: investigations and disclosure. Suspicions were aroused by activities for which sometimes an explanation was offered by the Appellants; sometimes they may have not been aware of them because the evidence was only dealt with in closed session. On a number of occasions, an obvious line of inquiry was not pursued either by the police or the Security Services; we exclude those where there would have been risks of one sort or another in pursuing them. Sometimes the enquiries were not pursued for the simple reason that at the time of the investigation, there was no desire or need on the part of the services to do more than see whether a particular individual was of interest to them so that resources should be allocated to him; they were not as such collecting evidence and still less were they trying to prove a case or investigate a possible innocent explanation. It is not a question of them simply ignoring material which might assist the Appellants because their minds would not be deflected from the track upon which they were set. It is that by the nature of their habitual task, they deal with suspicion and risk rather than proof. So it does not always appear to them necessary to pursue lines which might confirm or eliminate alternative explanations. But it does mean that less weight can be attached than otherwise might have been the case to certain aspects which aroused their suspicions. There may be a gap, between a seemingly suspicious activity and it giving reasonable grounds for suspicion in this context, which cannot be filled by inference or assessment where it could readily have been filled by further investigation. 52. The general point relating to disclosure did not so much concern the disclosure of material to the advocates, although it had an indirect effect there; it concerned the disclosure of material to the special advocates. Once disclosed to them, however, it could and sometimes did become the subject of further disclosure to the advocate and the Appellant. The SIAC Act and the Procedure Rules do not contain any provision for disclosure of unused material to the special advocates; there is no equivalent to the disclosure process applicable to criminal proceedings and there would be obvious difficulties in any such system. We were told in closed session on 28th May 2003, transcript p10 and following, that there was a guide within the Security Service SIAC team about disclosure which included a requirement that any "exculpatory material" should be disclosed. This requirement covered "material that may assist the Appellant's case or undermine his own". The obligation lasted throughout the case. Examples were given of what was meant. Legal advice should be sought about the disclosure. It would not necessarily be disclosed to the Appellant or his open advocate. A team was responsible for disclosure rather than the witness in the case, who was not in a position to read all the documents which might relate to a particular Appellant. 53. Mr Williams accepted that it was Counsel's responsibility ultimately to make sure that if a point arose during the hearing that required a review of what had been disclosed to the Special Advocate, that such a review took place. There had been a process of secondary review already following the service of the Appellants' statements. It was accepted by Mr Williams that there needed to be a more formalised system of document checking for these purposes. (In fact the particular passage of crossexamination which led to that discussion revealed that there was both strong supportive material for the point being made by the witness which had not been disclosed, and a document which could be construed as helpful to the Appellant, but was not as helpful as Mr Scannell was inclined to suggest.) 54. It is correct that this disclosure system leaves control over disclosure in the hands of one party and its fair operation depends on the integrity of the Respondent's team and its understanding of what might actually assist an Appellant. We had no reason to doubt the integrity of those who operate it and no-one sought to cast doubt upon it. But the understanding of the Appellant's case is important as well. The Commission records and welcomes the Respondent's acknowledgement of the role of responsible counsel in a more formalised system of checking, drawing to the Respondent's team areas which should be looked for when the documents are reviewed after the Appellant's statement and as the case proceeds. There is no reason why the Special Advocate should not raise specific issues to be borne in mind during such a review. The Commission would be very slow to draw conclusions adverse to the Appellant if it felt that the Respondent's own guidance had not been faithfully and effectively followed. The reasonableness of the grounds would be reviewed in that light." 279. It is, I think, clear that in the course of these cases SIAC and the parties found themselves on something of a learning curve as regards the evolution of proper interlocutory procedures especially in relation to the need for an orderly system for the disclosure of relevant documents. I do not say that the http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 71/113