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IRA spy's damages case can be held in secret, court rules

By John Ashton

Published 15/07/2015

The Court of Appeal has ruled that the Home Secretary can use secret court hearings to defend a damages claim being brought by IRA mole Martin McGartland
The Court of Appeal has ruled that the Home Secretary can use secret court hearings to defend a damages claim being brought by IRA mole Martin McGartland

The Court of Appeal has ruled that the Home Secretary can use secret court hearings to defend a damages claim being brought by IRA mole Martin McGartland.

Mr McGartland and his partner and carer Joanne Asher are suing MI5 for breach of contract and negligence in his after-care following a shooting by the IRA which left him unable to work.

Mr McGartland and Ms Asher say their protection by security services agents was "mishandled".

A former agent of RUC Special Branch, Mr McGartland claims the security services failed to provide care for post-traumatic stress disorder and access to disability benefits.

A High Court judge said national security justified Home Secretary Theresa May having the option of secret "closed material proceedings'' (CMPs) when his case comes for trial, if necessary.

Mr Justice Mitting said "sensitive material" relating to protecting and training security service "handlers'' arose in the case.

Three appeal judges have unanimously agreed the single judge was entitled to take that view.

Mr McGartland blames "years of neglect" by MI5 for leaving him traumatised and unable to work because of his secret life.

The west Belfast man's best-selling book about his experiences, 50 Dead Men Walking, has been made into a film.

Mr Justice Mitting declared that closed procedures for his damages claim were "in the interests of the fair and effective administration of justice'' and so permitted under section 6 of the Justice and Security Act 2013.

Upholding the declaration, Lord Justice Richards, sitting with Lord Justice Lewison and Lord Justice McCombe in London, described it as "a case management decision properly open to the judge and there is no proper basis for this court to interfere with it".

Lord Justice Richards stressed that he had read the High Court decision as going no further than "opening the gateway" to closed material proceedings being a "possibility", and he expected any application to use them to be "scrutinised with care".

The ruling means that Mr 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.

But Lord Justice Richards said the court must consider serving a summary of the evidence, and at the hearing there must be compliance with Mr McGartland and Ms Asher's right to a fair trial under Article 6 of the European Convention on Human Rights.

If the court thought at any time 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.

Mr McGartland's lawyers say his claim does not pose a risk to national security and will not expose any aspect of his undercover work.

Belfast Telegraph

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