Aaron Moss in Family Division case on the funding of special advocates

Mrs Justice Lieven gave judgment last month (recently published) on the question of who should fund special advocates in the Family Division where only some of the sensitive information originates from the State.

In this case, SK v RO [2023] EWHC 2896 (Fam), the Court held that it was unavoidable that there would be a Closed Material Procedure (“CMP”) despite this not being a national security case. The CMP was required in order to allow the Court “to have regard to the entirety of the Mother’s allegations and the police disclosure”. The Court said that “these allegations include, but are not limited to, a risk of honour based violence”.

Having decided that there would be a CMP, the Court came to grapple with how that should be funded. Lieven J noted the principle from earlier authorities such as Re R [2017] EWHC 1793 (Fam), that “the agency which holds the sensitive material” should “fund the Special Advocate”.

But what about this situation, where some of the closed material comes directly from the mother and not from an agency? The Court held that this made it “materially different from Re R because the Police do not have exclusive ownership of the sensitive material. Some of the CLOSED material is held by the WMP but much is held by the Mother alone. It is therefore less easy to justify ordering the police to pay the entire or uncapped costs of the SA.”

The Police made an offer to pay 50% of the estimated costs (ie £15,000 of an estimated £30,000). The Court ordered that the Police should pay the amount offered, but that costs should be capped at that figure (something which courts previously have been reluctant to do).

This case is authority that the police are not the last resort when it comes to funding Special Advocates in a CMP but should only pick up the bill where they have disclosed the material which necessitates the CMP.

Aaron Moss acted for West Midlands Police.

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Authors

Aaron Moss

Call 2013

Related areas

Police Law

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