Witness IIA126, R (on the Application of) v The Chairman of the Independent Inquiry Relating to Afghanistan

This judgment, supplemented by a short CLOSED judgment, deals with some case management issues following hearings in OPEN and hearings in CLOSED (from which the Claimant, the Afghan Families and the public were excluded).

The proceedings were previously the subject of an OPEN case management order by Steyn J dated 13 November 2025 and an OPEN judgment dated 3 November 2025. The background to the proceedings is explained in that judgment and is not repeated here, save that the claim challenges Restriction Orders made by the Defendant providing for what are referred to as “Green Hearings”.

On that occasion Steyn J (1) made a declaration under section 6 of the Justice and Security Act 2013 that this judicial review is a proceeding in which a closed material application may be made to the court and (2) ordered that “any material falling outside of the scope of the definition of sensitive material in section 6(11) of the JSA 2013 but which the Court considers would be damaging if disclosed to the Claimant and/or Second Interested Party and/or made public (‘the Haralambous material’) can be considered by this Court in a CMP pursuant to the Court’s inherent jurisdiction, as established in R (Haralambous) v Crown Court of St Albans [2018] UKSC 1, [2018] AC 236”. The Attorney General was invited to appoint Special Advocates to represent the interests of each of the Claimant and the Second Interested Party in any future CLOSED hearings.

Steyn J’s order also contained further directions, including:

“7.3

Within 21 days of receipt by the Special Advocates of the CLOSED material:

7.3.1

the Claimant and the Special Advocate appointed to represent his interests shall confirm which elements of the Claimant’s disclosure application continue to be pursued, and

7.3.2

The Claimant, Defendant, Special Advocates and Interested Parties shall seek to agree directions relating to the determination of any outstanding preliminary matters (OPEN and CLOSED) requiring resolution prior to a decision whether to grant permission to apply for judicial review, including:

(i)

Any further CLOSED submissions (as appropriate) regarding the jurisdictional basis of any CMP;

(ii)

Any outstanding aspects of the Claimant’s application for disclosure which he has confirmed he continues to pursue;

(iii)

The format/procedure and scope of any CMP (including the s.8 process under the JSA 2013), i.e. how to determine the OPEN-CLOSED divide and testing the boundaries of the same.

(iv)

Any further such directions relating to the CLOSED material as are appropriate to enable the issue of whether to grant permission to apply for judicial review to be determined.

…

8.

Following appointment of Special Advocates, a further Case Management Hearing shall be listed to determine any outstanding elements of the Claimant’s application for disclosure and any other matters arising out of the issues set out in paragraph 7.3 above.”

The further Case Management Hearing has now taken place before me, where I was asked to set a timetable for the onward progress of this claim and to resolve some specific case management issues.

All parties agreed and their counsel submitted that it would be in the interests of justice for this judicial review to be the subject of a rolled up hearing.

In R (Al-Haq) v Secretary of State for Business and Trade [2025] EWHC 173 (Admin) Chamberlain J identified the following as factors which are often relevant in deciding whether to order a rolled up hearing:

Section 38 of the Inquiries Act 2005 imposes a 14-day time limit on applications for judicial review of decisions of a public inquiry, indicating that expedition may be important for claims of that kind. A decision on this judicial review is, at the very least, significant for the onward progress of the Inquiry. The difficulties attendant on closed material procedures (“CMP”) have already contributed to the passage of over 6 months since this claim was commenced. There is therefore a particular need for a quick and final decision.

Without prejudging what the outcome of the permission stage would be, but bearing in mind the possibility of an appellate stage as well, I think it likely that a rolled up hearing will contribute to finality being achieved more quickly.

The nature of the issues, the number of the parties and the need for OPEN and CLOSED hearings mean that an oral permission hearing in this case would probably take substantially longer than in the average case.

Conversely, the Defendant does not anticipate the burden of a rolled up hearing being significantly greater than that of an oral permission hearing. I agree with that assessment.

For those reasons I will set a timetable to lead up to a rolled up hearing later this year.

On 19 September 2025 the Claimant applied for a number of documents and categories of documents. There were 19 items or categories and a 20^th was added in the Claimant’s skeleton argument for the hearing before Steyn J. Meanwhile the Defendant responded to the application in written submissions on 29 September 2025.

Steyn J’s order is quoted above. Paragraph 7.3.2(ii) requires the Claimant, in consultation with the other parties, to confirm which if any aspects of the disclosure application are pursued, within 21 days of receipt by Special Advocates of the CLOSED material. The process of appointing the Special Advocates has been unavoidably lengthy, with the effect that that deadline, 6 February 2026, had not yet expired at the time of the hearing before me.

Nevertheless, the Defendant invited me to dismiss the application so far as it concerns numbered items 6-12 and 13-19.

In support of that, Mr Glasson KC explained that items 6-12 were stated to arise from a sixth ground of claim which the Claimant sought to introduce by amendment but for which Steyn J refused permission, and items 13-19 were stated to be for material related to other restricted hearings in the Inquiry which are not the subject of this claim, making the material irrelevant.

That suggestion was resisted by Ms Grange KC on behalf of the Claimant. She submitted that items 6-12, notwithstanding their stated connection with the proposed ground 6, are directed at information about the relevant restricted hearings which, on the face of it, should be disclosed pursuant to the Defendant’s duty of candour. The Defendant responded to the requests by indicating that these items had been dealt with in CLOSED but the Claimant’s OPEN representatives presently know no more than that, not least because it has not yet been possible to set up a route for communication of legally privileged material from the Claimant’s Special Advocates to the Claimant.

As to requests 13-19, the Claimant has made clear in correspondence that these should now be understood as referring only to any other “Green Hearings” i.e. restricted hearings which are similar in nature to those the subject of this claim. At present the Inquiry has refused to confirm or deny whether there have been any such hearings.

In these circumstances and bearing in mind the fact that the deadline set by Steyn J has not expired, Ms Grange submits that it would be at best premature to dismiss these parts of the disclosure application now.

Mr Glasson indicated that an order dismissing those parts could be subject to a caveat that the order would not cover requests regarding any other Green Hearings.

I am not persuaded that it is necessary, or that it will be helpful, to accelerate the consideration of the Claimant’s disclosure requests to deal with these items now. Instead, the timetable set by Steyn J should be followed. Whilst Mr Glasson has identified reasons why these parts of the disclosure request might not be allowed, there remain significant obstacles to the Claimant’s consideration of the factual case, not least in the absence of an established mechanism for the Claimant’s Special Advocates to communicate with him on a legally privileged basis. I therefore decline to disallow any of the disclosure requests at this stage.

I heard competing submissions about the timetable going forward. In particular there is disagreement about the case management of (1) disclosure applications by the Claimant (and any that are made by the Claimant’s Special Advocates) and (2) applications by the Defendant to withhold material under section 8 of the 2013 Act or under the Haralambous jurisdiction.

Ms Grange submitted that these should represent two distinct stages in the timetable. She supported a proposal by the Claimant’s Special Advocates for a hearing in the week commencing 23 February 2026 to deal with (1) the Claimant’s and his Special Advocates’ extant applications for disclosure and (2) any further submissions on the jurisdictional scope of the CMP and any procedural issues arising from the applications by the Defendant and the Third Interested Party to withhold material (“the CMP applications”). There would then be a separate hearing, proposed to take place in the week commencing 27 April 2026, to determine the CMP applications.

That approach, Ms Grange submitted, would enable any differences of legal approach to the CMPs to be identified and resolved by the Court at the first stage, so that the parties could then address the correct approach at the second stage.

The potential differences concern questions such as:

Mr Glasson, with the agreement of Mr Butt KC on behalf of the Third Interested Party, submitted that those two stages should instead be one composite stage, with a hearing in the week of 14 April 2026 to determine any issues about the jurisdictional scope of the CMP and the approach to be followed, the CMP applications and any of the Claimant’s requests for disclosure which have not been resolved.

In short, his response to Ms Grange’s proposal to determine points of principle about the CMPs before the CMP applications are heard is that the points of principle cannot or should not be decided in the abstract. Instead, the Court should have before it the CLOSED material and the relevant positions on it of the Defendant and the Special Advocates before it decides questions such as whether it can or should apply specific provisions of Part 82.

I agree with Mr Glasson that it may be difficult or unsatisfactory for the Court to determine the issues of the correct approach without reference to the material concerned.

Conversely, I am not convinced that there will be particular difficulty for the parties in making their submissions without knowing how the Court will ultimately resolve disputed issues of law. The discussion of the issues at the CMH led me to the view that any remaining issues are likely to be narrow, though that does not mean that they will not be important.

I also consider that a single stage approach will be more efficient. There is a need to progress this case as I have said. Although that consideration does not trump other important factors, it is desirable to avoid multiple stages in this litigation with the attendant delays which are likely to be increased by the demands of having CLOSED as well as OPEN procedures.

I have therefore concluded that the Defendant’s single stage approach is preferable, although it seems to me that the hearing of the disclosure and CMP applications will require a 2-day hearing.

If that means that the rolled up hearing of the claim will occur significantly before 31 July, that is a good thing, though ultimately the priority must be to have a workable timetable and a hearing in the Trinity Term will not necessarily result in a judgment before the end of the legal year.

In that regard, for reasons which I have addressed in CLOSED, the directions should include, at the start of the timetable, a provision of the kind proposed at paragraph 1b of the Claimant’s Special Advocates’ draft directions requiring some further particularisation of the Defendant’s CMP application (gisting is dealt with separately below). That will necessitate some adjustment to the deadline for the Special Advocates to file requests and submissions under paragraph 2 of the Defendant’s draft directions. I invite the parties to agree precise dates, failing which I shall resolve any remaining areas of disagreement.

Ms Grange has indicated that she will apply in due course for an amendment of the directions in this case so that instead of material being either OPEN or CLOSED, the CLOSED category will cover material which has been subject to restriction orders made by the Defendant which are not those the subject of this claim (and which has therefore been seen by the Witness Legal Team), and there will be a new category of RESTRICTED CLOSED to cover material to which the restriction orders under challenge apply (i.e. material relating to the “Green Hearings” for which the Defendant provided). That application, which I am told will be opposed by the Defendant, was not pursued before me but Ms Grange indicated that it will return to the agenda, most likely at the hearing for which I have provided to deal with disclosure and withholding applications. I say no more about it at present.

All parties agree that there is a pressing need for a suitable mechanism to be put in place. I have not been asked to make an order for the time being but when the parties seek to agree the order containing my directions, some stages will be contingent on the mechanism being in place. The Defendant has indicated that it will take the necessary steps as soon as possible. A timescale of 7 days was mentioned, which will have elapsed by the time this OPEN judgment is circulated. I therefore expect this item to be resolved by the time that my order is finalised.

The Defendant has not yet provided these. This has already had an impact on the work of the Claimant’s OPEN representatives, limiting the scope of their consultation with the Claimant’s Special Advocates before they went into CLOSED. Ms Grange invited me to order a deadline of 9 February 2026 for their provision.

Mr Glasson resisted that submission. In OPEN he referred to the Defendant being engaged on numerous gisting exercises which are complex and difficult. In response to requests from Ms Grange and from me, Mr Polnay KC provided some more detail in CLOSED.

Mr Glasson’s draft directions essentially reverse the process suggested on behalf of the Claimant. He proposes that by 20 February 2026 the Special Advocates file and serve any requests for CLOSED material (which would include the transcripts of the Green Hearings) to be disclosed into OPEN, and by 19 March 2026 the Defendant (and the Third Interested Party) would file and serve their replies, accompanied by OPEN versions if appropriate, the gists in question being provided at that point.

It seems to me that those gists have a central importance in this claim. The parties have been told that they were being prepared as early as August 2025. In my judgment it is reasonable, in principle, to set a deadline for their provision which will enable the Special Advocates to consider them before making their requests for disclosure or clarification of the CLOSED material.

I have not adopted the suggestion of ordering an immediate deadline, but I also consider 19 March to be too distant. It seems to me that the gists should be provided in 2-3 weeks if possible and that the Special Advocates should have them before they make their requests. If the Defendant wishes to persuade the Court that that is impossible, then that will require further urgent consideration in OPEN and CLOSED.

A proposal in paragraph 11 of the Defendant’s draft directions for service of CLOSED documents on the First Interested Party was agreed by Mr O’Connor KC on its behalf.

All parties agree that the Second Interested Party can be granted permission to add the name of a new individual, Mr Agha Afghan, to the proceedings.

The parties’ request for the rolled up hearing to be listed before a Divisional Court will be considered as part of the listing process in the usual way.

The parties are invited to agree a draft order in line with these directions.