Belhaj & Ors v Director of Public Prosecutions & Ors

Facts

Abdel Hakim Belhaj and Fatima Boudchar brought judicial review proceedings challenging the decision of the Director of Public Prosecutions not to bring a prosecution for alleged cooperation and participation in their rendition to Libya. Sir Mark Allen CMG, the Commissioner of Police of the Metropolis and the Secretary of State for Foreign and Commonwealth Affairs were interested parties, and Special Advocates were appointed, the argument on this issue being heard in closed proceedings. Three key documents were central: the advice provided to the DPP by Richard Whittam QC, the review note by Sue Hemming, and the VRR decision by Gregor McGill. Those documents were identified in OPEN but disclosed in redacted form only into CLOSED. The Secretary of State identified errors in that disclosure: eight examples of "overclaim" of legal professional privilege, which were corrected uncontroversially since they revealed more information, and twenty passages of "underclaim", where material said to be privileged had been left unredacted and which the Secretary of State now sought to redact. The fact of the application was made open in a communication to the claimants' lawyers of 25 January 2018 and in a communication request from the Special Advocate of 7 February 2018, no communication having revealed the content of any overclaim or underclaim. The Special Advocates opposed the reassertion of privilege.