Today the Supreme Court of the United Kingdom has held a closed hearing for the first time in its history. It has been hearing Bank Mellat’s appeal against the Court of Appeal’s judgment refusing to set aside the United Kingdom’s direction preventing people operating in the financial sector in the UK from doing business with the Bank (an Order in Council made under the Counter Terrorism Act 2008).
The Treasury had made that Order on the grounds that the Bank was alleged to provide banking services to a UN listed organisation connected to Iran’s proliferation sensitive activities, and had been involved in transactions related to financing Iran’s nuclear and ballistic missile programme. The High Court and Court of Appeal rejected the Bank’s arguments that the Order was disproportionate, discriminatory, and procedurally unfair  QB 101.
The General Court of the European Union quashed the Bank’s designation by the EU before the Supreme Court hearing, on the grounds that the reasons given for its designation were too vague and unsupported by evidence (Case T-496/10 – see blogs on Bank Mellat)
The Bank, supported by Liberty, opposed the Government’s application for the Supreme Court to consider the “closed” judgment of the High Court in which secret evidence was considered but not disclosed to the Bank (the statutory scheme permits CMPs in the High Court and Court of Appeal but is silent on the Supreme Court). The Supreme Court gave a preliminary ruling, holding (by a majority of 6 to 3) that it had jurisdiction to consider the closed judgment and to hold a closed hearing if necessary.
Today it held a closed hearing for the first time in its history, Lord Neuberger describing it as an “unhappy procedure”. The Bank was represented by a special advocate but the Bank itself could not see the material or attend the closed hearing. The Court has not yet decided whether to give a closed as well as an open judgment.