O3, R (On the Application Of) v Secretary of State for the Home Department

Hugh Southey KC, Alex Burrett and James Robottom (instructed by JD Spicer Zeb Solicitors) for the Claimant David Blundell KC and Andrew Byass (instructed by GLD) for the Defendant Aaron Watkins (instructed by SASO) as Special Advocate Hearing date: 15/11/22 ____________________

For the purposes of this claim for permission for judicial review, I proceed on the basis that all the points made by Mr Southey KC, which I have set out in this paragraph, are correct.

This concern involved three key points: (i) the special advocate's inability to "alert the appellant" of the existence of the "closed material"; (ii) the special advocate's inability to "make fresh claim representations" to the Secretary of State; (iii) the judicial review Court's inability to evaluate the closed material. In light of those concerns, the Secretary of State's "continuing duty" was insufficient by way of protection.

This passage reflects the idea that the Court itself "alerting the appellant to the possibility of a fresh claim" would address the concern raised. Rewinding the chronology in the present case, that would be akin to the Court of Appeal having raised an alert with the Claimant's lawyers, in the same way that the Secretary of State raised an alert with SASO leading to the Communication of 24 August 2021.