Fears over the Government’s use of secret closed-door hearings have increased after a High Court judge ruled in favour of Home Secretary Theresa May’s application to deny a former IRA mole access to his own case.
The finding means that Martin McGartland, who is credited with saving 50 lives after supplying intelligence to the British authorities, must rely on a special advocate who neither he nor his lawyers will have direct access to.
Lawyers for Mr McGartland, who with his partner Jo Asher is suing MI5 and the Home Office for its alleged failure to provide him with after care of medical support and benefit payments, say the case has no bearing on national security.
Mr Justice Mitting’s ruling in favour of an application by the Home Secretary is based on the Justice & Security Act 2013, which allows the security services to apply for cases to be heard in controversial closed material proceedings without claimants or their lawyers being present.
“The judge has given primacy to secrecy over every other consideration,” said Nogah Ofer, Mr McGartland’s solicitor. “It does not even give lip service to the right of a claimant to have knowledge of the evidence in his own case. This is someone who worked for the British state as an informant, it’s not someone who was a terrorist. It’s a million miles away from what the legislation was supposed to be addressing.”
The judge said he had “principled and pragmatic” reasons for allowing the Home Secretary’s application. To properly consider the case, he would need to consider sensitive material which could only be dealt with in secret.
Ms Ofer said Mr McGartland would be taking the case to the Court of Appeal.
His cover as a mole was blown in 1991 when he fell under suspicion and was “arrested” by the IRA before being taken for interrogation. Believing he was about to be murdered after eight hours of questioning, he threw himself from a third floor window. He suffered serious head injuries but was rescued by locals who called an ambulance.
McGartland was given a new identity but he was attacked and repeatedly shot by an IRA hit team who tracked him to a safe house in North Tyneside in 1999. His experiences formed the basis of the 2008 film 50 Dead Men Walking, starring Jim Sturgess and Ben Kingsley.
In contesting his claim that he has received insufficient after care, the Home Office is refusing to acknowledge that he even worked for the British state by taking a “neither confirm nor deny” (NCND) position.
The Justice & Security Act was previously used earlier this year in the case of Mohammed Ahmed Mohamed, 27, a terror suspect who went missing after changing into a burka at a mosque. Although he was missing, lawyers acting on his behalf applied for the quashing of restrictions on his movements introduced by the Home Secretary.
A judge had previously ruled that there were reasonable grounds for believing that Mr Mohamed and a second individual, referred to only as CF, had been involved in terrorism-related activities.
Ms Ofer said that the McGartland case was more akin to the treatment of police informants, which are routinely handled by the courts without recourse to such secrecy. “We don’t accept that there are national security issues here,” she said.