Who pays the costs of Special Advocates where closed material procedures are required to consider sensitive police documents in family proceedings? The police, according to Cobb J in Re R (Closed Material Procedure: Special Advocates: Funding) [2017] EWHC 1793 (Fam).

In family proceedings where the police are ordered to disclose relevant documents, occasionally the police object to disclosure or inspection of particularly sensitive documents. Where the court deems it necessary, it can invite the Attorney General to appoint Special Advocates to represent the interests of the parties in closed material procedures to consider that sensitive evidence. Special Advocates are appointed by through the Special Advocates' Support Office (“SASO”), which is part of the Government Legal Department.

Re R arose out of contested family law proceedings under Part IV of the Children Act 1989, about residence and contact relating to an estranged couple’s child. The police shared information with the parties about an ongoing conspiracy to murder the father but resisted disclosure of a small quantity evidence about that conspiracy. The police submitted that disclosing this information would materially heighten the risk to the father, the child (who lived with him), and to others, as well as expose police operational details and, therefore, be contrary to the public interest. This led to the closed material procedure being invoked.

After three closed material hearings in which the mother participated through a Special Advocate but the father did not participate, Pauffley J directed that the father should have a Special Advocate for future such hearings in order to prevent a denial of justice. Although the police had paid for the mother’s Special Advocate “out of pragmatism”, they refused to pay for the father’s Special Advocate. It therefore fell for the Court to consider who of the Attorney General, the local authority, the Legal Aid Agency (who were funding the father’s representation), or the police should fund the costs of the father’s Special Advocate.

In civil proceedings, Part 82 of the Civil Procedure Rules 1998 ('CPR') deals with Special Advocates in civil proceedings. There is no equivalent provision in the Family Procedure Rules, although the President's Guidance on the "Role of the Attorney General in appointing Advocates to the Court or special Advocates in Family Cases" (2015) states that he sees no reason why the Attorney General should be expected meet the cost of the Special Advocate, and no reason why the court should not fix in advance which party will pay the Special Advocate’s costs. The President’s Guidance and case law was silent as to which party that should be.

Almost by a process of elimination, the Court concluded that it was the police who should pay the costs of both the mother’s and the father’s Special Advocates. It was accepted that the Attorney General did not have resources for paying for Special Advocates in the circumstances of the case [23], [27]. Although the local authority was the applicant in the proceedings, it played no part in the closed material process, had no intention of doing so and it did not possess, or otherwise have access to, the closed material [29]. The judge found that funding for Special Advocates fell outside the ordinary scope of the Legal Aid scheme [20], [27] and commented at [21] that he strongly suspected that the qualifying criteria for exceptional case funding would not be met either. Cobb J therefore reached the conclusion that the police should fund the father’s Special Advocate because [29]:

The Police have exclusive ownership of the sensitive material. The Police wish to ensure that (a) the Court is in possession of that material and that (b) the Court is aware of the reasons why disclosure of that material would be contrary to the public interest; it proposes that the sensitive information is therefore presented to the Court exclusively in closed session, and that its disclosure to the parties should be closely and rigorously controlled. In my judgment, the Police, having taken this position (which I emphasise has been approved as reasonable and appropriate thus far), should be required to broaden its obligations to ensure that those who are most affected by the information are given the fullest and fairest opportunity to have the case for non-disclosure tested.

The judge fortified his conclusion with the analogy of the Special Immigration Appeals Commission (“SIAC”) where the Home Secretary ordinarily funds the Special Advocate at [29]. If anything, this was an argument against the police having to pay for Special Advocates’ costs because, unlike the police’s involvement in most family cases (Re R included), in SIAC cases the Home Secretary is a party to the proceedings, has exclusive ownership of the sensitive police material, seeks to ensure that the Court is in possession of that material and does to advance her own case.

Nevertheless, the result of the decision in Re R is that where the police introduce evidence to family proceedings that they wish to withhold disclosure or inspection of and the evidence is sufficiently material that Special Advocates must be engaged, it will usually be the police who pay their costs. In Re R, the Special Advocate and the SASO had generated over £53,000 in professional fees on behalf of the mother in the eleven months before the hearing, so the potential impact of this ruling is no bagatelle.

Chief Constables can take limited comfort for two reasons. First, closed material procedures involving Special Advocates are exceptional. In A Chief Constable v YK, RB, ZS, SI, AK, MH [2010] EWHC Fam 2438; [2011] 2 WLR 1027, Sir Nicholas Wall P described closed material procedures as "a matter of last, as opposed to first resort". Second, there may be scope for arguing in cases where the parties are not legally aided, that the party on whose behalf the Special Advocate is being instructed should fund their costs. In the earlier case of Saimi Bi v Imran Mohammed [2016] EWHC 506 (Fam), Holman J took the view at [13] that: "… the person or party who patently should be required and expected to pay the costs of the Attorney General is the wife/mother since it is her lawyers who so strenuously seek production of these documents" but that "she has no means whatsoever and is legally aided with no doubt a nil contribution." Like Cobb J, Holman J was unwilling to order that the Legal Aid Agency meet the cost of the Special Advocate; had the case been privately funded by the party seeking the instruction of a Special Advocate on their behalf, the conclusion might have been different.