Complaints by an IRA informant that he was not sufficiently protected by MI5 are likely to be heard in a secret trial, the court of appeal has accepted. The decision by three judges supports arguments on behalf of the home secretary, Theresa May, that the damages claim by Martin McGartland, who penetrated the republican movement, cannot be heard in open court.

In a separate judgment relating to Iranian sanctions, the court of appeal on Tuesday ruled that the same “closed material procedure” – which deprives claimants of access to the evidence against them and prevents media reporting on the grounds of national security – can be used in a case brought by Ahmad Sarkandi and others against the Foreign Office.



Although the 2013 Justice and Security Act had anticipated that such secret hearings would be “exceptional”, Lord Justice Richards said, the conditions for their use were “defined in detail in statute” and there was “no reason to give the statutary provisions a narrow or restrictive construction”.



The two judgments taken together are likely to signal that secret hearings will become more widespread in the civil courts. Human rights groups campaigned against the legal changes on the grounds that they severely restrict the principle of open justice.



McGartland, along with his partner and carer Joanne Asher, is suing the intelligence service for breach of contract and negligence in his care after he was exposed as a police agent. Brought up in west Belfast during the Troubles, McGartland was recruited by the RUC’s special branch and infiltrated the IRA, where he provided valuable information to the security services. Shortly after his cover was blown in 1991, he was kidnapped by the IRA, and only escaped by jumping out of a third-floor window.

He was subsequently moved from Northern Ireland to the north-east of England by his handlers, but his address became known when he appeared in court to face unrelated charges, of which he was acquitted. Two years later, in 1999, McGartland was shot seven times by gunmen presumed to have been sent by the republican movement. His bestselling book about his experiences, 50 Dead Men Walking, has been made into a film.

Police activity in Whitley Bay, Tyneside, in 1999 following McGartland’s shooting. Photograph: Owen Humphreys/PA

McGartland alleges that his safety was compromised by errors in the way he was protected. He is seeking additional payments for medical treatment of his post-traumatic stress disorder and other benefits after being resettled, in a case that tests how much legal argument must be conducted behind closed doors.

A high court judge has previously ruled that, in the interests of national security, the home secretary was entitled to have the option if necessary of using secret closed material procedures (CMPs) when McGartland’s case comes for trial. Upholding the high court ruling, Lord Justice Richards – sitting with Lord Justice Lewison and Lord Justice McCombe – said it was “a case management decision properly open to the judge and there is no proper basis for this court to interfere with it”.



Richards stressed that he had read the high court decision as going no further than “opening the gateway” to CMPs being a “possibility”, and he expected any application to use them to be “scrutinised with care”.

The ruling means McGartland, 43, and his lawyers will not be able to hear parts of the case or to see “sensitive material” if closed hearings take place. Special advocates will be appointed to protect his interests at court hearings. Richards said the court must consider serving a summary of the evidence, and throughout the hearing there must be compliance with McGartland’s and Asher’s right to a fair trial under the European convention on human rights.

If the court considered at any time that a closed hearing was “no longer in the interests of the fair and effective administration of justice”, it must revoke the section 6 declaration, said the judge, referring to the section of the Justice and Security Act 2013 that permits CMPs. Powers to hold secret hearings were introduced in July 2013 so that trials using closed procedures could take place in civil courts without damaging national security.

McGartland’s lawyers have described such procedures as “a serious aberration from the tradition of open justice”. Nogah Ofer, of Bhatt Murphy solicitors, who represents the former agent, said she intended to appeal to the supreme court. “This procedure is something that the intelligence services will now reach for more and more readily,” she told the Guardian. “The court has not treated this as a matter of last resort. Closed hearings are very serious. We are not given access to evidence. They should not be waved through without all the other options being dealt with first.”

She contends that McGartland’s claim for damages for personal injury does not pose a risk to national security and will not expose any aspect of his undercover work as an informant against the IRA.



Government lawyers told the court that an assurance of “secrecy forever” lies at the heart of the relationship between the British security service and its agents.

