Mohammed, R (On the Application Of) v The Secretary of State for Defence

On 16 November 2012, I ruled that the court could order that some information in respect of which PII has been claimed could, as a matter of principle, be provided to the Claimant’s lawyers only and considered in camera. This mechanism has been described as a ‘confidentiality ring’. These are my reasons for making that ruling.

The hearing of this case is listed to start on 29 November 2012. At an earlier hearing, on 2 November 2012, the Secretary of State opposed the imposition of an interim injunction pending the hearing on the grounds of the pressing need to resume the transfer of detainees to the Afghan authorities. This urgency, attested to by a commanding officer, has led to the need to continue the process of disclosure and the claims for PII without the opportunity to set out my reasons or to consider whether it is necessary to put my ruling into effect. A further hearing in relation to PII took place on 16 November 2012 at which Ms Steyn, for the Secretary of State, repeated some of her submissions made before my ruling and added further submissions. I shall, in so far as it is necessary, have the renewed and fresh submissions in mind, even though they were made after she had failed to persuade me when giving these reasons and, of course, consider them in the context of the rulings I must give in relation to particular documents.

The Secretary of State submits that the practice of providing documents on a lawyer-only basis has now been ruled impermissible in the House of Lords in Somerville v Scottish Ministers [2007] 1 WLR 2734. The principle that courts are not permitted to order disclosure limited to a confidentiality ring is under-pinned by the reasoning which led the Supreme Court in Al Rawi v Security Service [2012] 1 AC 531, [2011] UKSC 34 to rule that, as a matter of principle, it was not open to the courts to introduce a closed material procedure to replace the existing common law procedure for dealing with claims for public interest immunity. The underlying principle which dictated that conclusion was the right of parties to participate in litigation in accordance with the rules of natural and open justice.

A document which is immune from disclosure is neither available to the parties nor to the court (Al Rawi [41]). The resolution of any issue as to PII will always involve a balance between the public interest in the administration of justice and the public interest in non-disclosure; one or other of those two aspects of the public interest is bound to suffer. If the claim to PII is upheld, then the document is altogether unavailable and the interests of justice will, to an extent, be damaged; if the claim is rejected, the public interest in immunity may go unprotected. A confidentiality ring enables that absolute effect to be mitigated to the advantage of every party. Those seeking immunity will obtain, to a substantial extent, confidentiality (although I must consider the Secretary of State’s contention that confidentiality rings are so porous and susceptible to inadvertent leakage that that is a reason why they cannot be permitted). Those seeking disclosure will at least be able to deploy documents which otherwise would never be seen and never relied upon by the court, and the court will benefit.

But this is an issue of principle and can only be determined by principle and not by convenience or practicality. It would have been highly desirable, from the point of view of the defendants, who had claimed PII in Al Rawi, if they had been permitted to adopt the closed procedure which they sought and without which they settled the claim (see the defendant’s description of the unfortunate consequences at [23]).

Is there some principle which precludes the court from ordering disclosure to those nominated within the confidentiality ring? I must recall that these are proceedings in which the claimant moves by way of judicial review but I shall assume that there is no distinction between the principles which apply in this type of litigation and in a civil claim. In any event these proceedings require the court to make findings of fact in relation to alleged breaches of Arts. 2 and 3 of the Convention and are allied to a civil claim for damages brought by the claimant.

Accordingly, the starting point must be the fundamental principles, embedded in the common law, which the Supreme Court identified in Al Rawi. Those fundamental principles were identified in the Court of Appeal as the right to a fair trial and the right to know the reasons for the outcome [70]. They were accepted by both those in the majority and those in the minority in the Supreme Court [46], [168]. Lord Hope and Lord Brown described them as principles of open justice and fair trials [72] and [83]. Lord Kerr identified the constitutional right to be informed of the case made against you in civil litigation [95].

Lord Dyson explained why a closed system would be inconsistent with those fundamental principles. The procedure excludes a party from the closed part of the trial and all or some of the reasons for the result [35]. The special advocate will, in many cases, be hampered by the inability to take instructions, nor will the judge be in a position to know the extent to which the advocate is hampered [36]. A special advocate may assist in the process by which a PII claim is determined but not in the deployment of the documents once that process is concluded [49]. There would be inequality of arms [41]. The procedure operates in favour of the party in possession of the closed material [42]. It would be difficult to judge whether the procedure should be ordered; the court should not be compelled to judge whether and to what extent the material assists one or other of the parties [43]. Lord Dyson drew attention to the danger of the gradual erosion of those fundamental principles [44]. The best way of producing a fair trial is to ensure that a party has the fullest information of the allegations against him and the evidence relied upon in support [47].

R v Davis [1993] 1 WLR 613 identified the circumstances when it was permissible for the prosecution to make a PII claim ex parte (the case provides an example of the erosion of fundamental principles to which Lord Dyson referred, Lord Taylor thought such cases would be “rare indeed” (617F)). The decision that an ex parte application could be made was founded on the principle that there could be no disclosure on a ‘lawyer-only’ basis. “It would wholly undermine counsel’s relationship with his client if he was privy to issues in court but could reveal neither the discussion nor even the issues to his client” (617 A-B). In R v G [2004] 1 WLR 2932 the principle was applied to circumstances in which the prosecution inadvertently disclosed sensitive material. The judge ordered that counsel should not disseminate that material to third parties, even to their clients and that, on a new trial, they could not deploy that material. The court quashed that order for two reasons: first, that it undermined the principle expressed in Davis and second, it was wrong for the judge to conclude that the solicitors and counsel could continue to act [19]. Rose LJ said :

“…it is for counsel and solicitors, not the court, to make that decision in the light of all the circumstances known to them, some of which may not, for reasons of legal privilege or otherwise, be known to the court.” [19].

The court’s conclusion that it was for the lawyers to decide whether they could continue to act under the restraint of a court order not to disclose material to their client was based on its endorsement of the view of the Bar Council [14]. It took the view that counsel could decide to continue to act (weighing professional embarrassment and any jeopardy to the lay client’s interests). The court thought that that stance was correct both “in principle and pragmatically” [14]. That conclusion is of particular importance in the instant case. It demonstrates that, as a matter of principle, lawyers can consent to a restriction in respect of material which has been disclosed to them, provided they reach the conclusion that they can do so without damage to their client’s interests. The reason why the judge’s order was unlawful was that he arrogated to himself the decision that the lawyers could continue to act, albeit restrained, when that decision could only be for them to make.

The high water mark of the Secretary of State’s argument is Somerville v Scottish Ministers. The fifth, of five issues, concerned the refusal of the Lord Ordinary to inspect redacted documents for herself in order to determine whether the claim for PII of those documents should be upheld. Their Lordships’ House concluded that she could not properly perform that task without examining them herself (Lord Hope [63], Lord Scott [83]-[86]).

In the course of his consideration of this issue, Lord Rodger expressed firm disapproval of the procedure adopted for the purpose of seeking to persuade the Lord Ordinary to inspect the redacted documents for herself. By agreement between the parties, under terms of strictest confidentiality, senior counsel for the petitioners had been permitted to inspect complete versions of the documents. Lord Rodger condemned this procedure:

“[152]. Although devised with the best of intentions, this procedure was, in my view, wrong in principle. As a result, it not only gave rise to very real practical difficulties but led the court to adopt a mistaken approach to the inspection of the documents by the Lord Ordinary.

[153] If the respondents' claim that, in the public interest, the redacted parts of the documents should not be revealed was valid, then, in normal course, it was valid against counsel for the petitioners who should therefore not have seen the full version. As it was, counsel for the petitioners was left in a very difficult situation where, as a result of reading the documents, he had information that he was not able to reveal to, or discuss with, his clients or instructing solicitors. He even felt inhibited from revealing it to the Lord Ordinary. The result was a certain paralysis in the procedure. In agreement with all of your Lordships, I am satisfied that no such procedure should be followed infuture.”

Lord Mance emphasised that the procedure adopted pre-empted the decision of the court. It involved disclosure to counsel of material which might subsequently be ruled to be immune from disclosure to anyone [203]. Moreover, it put counsel in “an invidious and unsustainable position in relation to his or her client” [203]. He invoked the two cases to which I have referred, Davis and G. He said that counsel was put into a position in which he was uncertain what it was permissible to disclose or say when making the submissions to the court about public interest immunity. He said the procedure had no precedent and should not become one [204].

Lord Mance’s speech identifies an important distinction between the procedure adopted in that case and the confidentiality ring proposed in this. In Somerville counsel obtained a sight of the very thing he would have been forbidden to see, were the claim to PII to be upheld. In the instant case, counsel for the claimant has not seen and will not see any documents in respect of which the claim to PII is upheld. The proposal only entails disclosure to counsel, on a confidential basis, once the court has seen the documents and heard argument as to where the balance between the public interest in immunity and in the administration of justice in the particular case lies. There is no question of pre-empting the ruling, as occurred in Somerville. That case was concerned with the fact that documents had been disclosed unredacted to counsel for the petitioners before the court had had any opportunity to rule whether the claim should be upheld or not.

A confidentiality ring would only be put in place after the court has considered the documents in respect of which immunity is claimed. It provides an alternative to a ruling either to uphold or reject the claim. The procedure adopted in Somerville breached the very protection which was sought by the Executive. If a court rules in favour of a confidentiality ring, it is deciding that the public interest demands not complete immunity but rather can be protected by a more limited form of confidentiality.

Moreover, I should recall that Lord Mance deployed the very case which admits of disclosure on a confidential, counsel-only basis, where counsel agrees that that can be done without prejudice to his client’s case, namely R v G.

I conclude that there is no principle to be found in Somerville which precludes a confidentiality ring once the judge has had an opportunity to consider whether the PII claim should be upheld.

It is also of note that R v Chief Constable of West Midlands Police, Ex p. Wiley [1995] 1 A.C. 274 was neither cited to their Lordships nor referred to in the opinions. Lord Woolf, with whom all the other members of the Committee were in agreement, identified the need for flexibility early in his speech (288 E). In his concluding observations he said:

“It may be possible to provide any necessary information without producing the actual document. It may be possible to disclose a part of the document or a document on a restricted basis. An assurance may be accepted by counsel. In many cases co-operation between the legal advisers of the parties should avoid the risk of injustice. There is usually a spectrum of action which can be taken if the parties are sensible which will mean that any prejudice due to non-disclosure of the documents is reduced to a minimum.” (307A-B).

A confidentiality ring affords a means whereby the public interest in immunity and in the administration of justice may be protected to an extent without the one having to yield completely to the other. It seems to be the very arrangement which Lord Woolf suggested in the second and third sentences of that passage.

A confidentiality ring will avoid some, although I acknowledge not all, of the evils which led Lord Dyson to reject the possibility of a closed hearing. Inequality of arms is brought back to a point nearer equilibrium. Even though some of the evidence available to the court and to the other side is kept from the client, at least his legal team within the ring will know of it. Although counsel cannot consult their client as to the contents of the documents disclosed, they can at least deploy them in favour of their client. They are in a far better position to understand the nature and the needs of their client’s case than a Special Advocate. They are in a peculiarly good position to judge the extent to which their client’s case would be damaged by an inability to communicate and discuss some of the material.

The instant case demonstrates a firm foundation for counsels’ confidence that their client’s case is not likely to be hindered but rather enhanced by disclosure of documents or information which the client cannot see for himself. The client is most unlikely to have anything useful to add, in the light of the particular contents of the documents. It is not possible to see how he could give any meaningful instructions in relation to them. The client is in prison in Afghanistan and there is no possibility of communicating with him about the case at all. He is illiterate.

The stance taken by his legal team is, understandably, that his interests are protected and enhanced by such a ring. A confidentiality ring can only exist where the client’s legal team consents and is of the view that it will not damage their client’s interests. In Al Rawi the question whether the parties could agree to a closed hearing was not for determination, and no argument was heard [46] although some of the Justices expressed doubt as to whether consent provided a solution [75] and [98]. If the alternative is either withdrawal or the inability to use the material, then neither side could be said to have agreed voluntarily [98]. Whilst the fact of consent distinguishes this case from Al Rawi I accept that the fact that the client’s legal team has consented cannot be dispositive.

The Secretary of State expressed the fear that the ring would fail to maintain the confidentiality necessary to protect the public interest. He submits that vetting to the required level will take time and require training. Even if that could be achieved, there remained the risk of inadvertent disclosure. Communication between the lawyers within the ring and those outside could easily occur in circumstances where those to whom the material is disclosed may not appreciate the full significance of its sensitivity. Moreover, in the instant case there are others, particularly Reprieve, who support the client and with whom there is likely to be discussion .

In my view these objections relate not to matters of principle but to the circumstances of any particular case, in the context of the documents or information in respect of which the PII claim is made. Rose LJ considered the difficulties which would follow the judge’s order in R v G; they included the dangers of inadvertent disclosure and monitoring the behaviour of those restrained [13]. But those difficulties did not lead the court to reject the possibility of counsel continuing to act, although inhibited from providing full information to their client.

I see no reason why the nature and description of that which must be confined to the ring should not be carefully prescribed. If it cannot be, then that would be a powerful argument against the use of a ring. I do not think that, in principle, the dangers of inadvertent disclosure in a judicial review case should prevent disclosure to a ring.

There are, as it seems to me, powerful precedents for a confidentiality ring. I was not assisted by rival arguments as to previous cases of judicial review; in particular, R (Maya Evans) v Secretary of State for Defence [2010] EWHC 1445 (Admin) does not appear to have adopted the same procedure since the client was within the ring. But it does seem to me of significance that confidentiality rings are used in competition cases without the suggestion that it is contrary to the fundamental principles inherent in a fair trial. Their use to protect commercially sensitive information is sanctioned by the Competition appeal tribunal (see e.g. paragraph 13.10 of its guide) and Competition Litigation (pp.239-243). They were sanctioned by Lord Phillips CJ in a competition case where abuse of a dominant market position was alleged (Virgin Media Communications Ltd v British Sky Broadcasting Group plc [2008] 1 WLR 2854 at [3]) and the cases referred to by Lord Clarke who dissented as to the result in Al Rawi [169]).

I conclude that there is no principle which prohibits a court considering whether to uphold or reject a claim for PII from ordering that, whilst the claim should not be upheld, nonetheless the documents or material should only be disclosed to those identified within a confidentiality ring on the terms specified in the parties’ undertaking.

The free and unencumbered ability to give and receive instructions is an important facet of open and fair trials. That ability is hampered if in some respects the lawyer is unable to disclose all the relevant evidence and material and, in that respect, the client is deprived of the opportunity to give informed instructions. But the degree to which that is of importance will vary from case to case. No lawyers should consent to such a ring unless they are satisfied they can do so without harming their client’s case. But provided the legal advisers are satisfied they can safely continue to act under a restriction, the inability to communicate fully with the client will not in such circumstances undermine the fundamental principles on which a fair application for judicial review depends.

After giving my ruling in principle, I heard argument from the Special Advocates and from the Secretary of State in respect of individual documents and classes of document for which PII was claimed. There has been very great disclosure into the open arena. PII was originally claimed in respect of information contained in 121 documents, under cover of five PII certificates. However, following the Claimant’s withdrawal of Ground (3), half of the PII claims fell away as the information ceased to be relevant. As the open certificates explained, PII was claimed in order to protect a variety of public interests, including operational security, international relations and the confidentiality of communications with various international bodies, including the International Committee of the Red Cross and the Afghan Independent Human Rights Commission.

I indicated that I would uphold the claims in respect of 50 documents and that I would order that information, or at least the essential facts, contained in nine documents – some of which had already been accidentally disclosed to the Claimant in these proceedings - should be openly disclosed. I adjourned consideration of the claims in respect of three documents.

More generally, I indicated that I would not order disclosure of information by a particular time because some of the claims were time sensitive and I was told that, as a result of new material recently received, the Secretary of State would have to reconsider his stance on some of the issues in the litigation, and this might affect the necessity to disclose documents.

Two days before the date on which the hearing was due to start, the Secretary of State indicated that he would re-impose the moratorium on transfers to Lashkar Gah and undertook to give 21 days’ written notice of any decision to resume them. Three days later, the Claimant issued a notice of discontinuance in respect of the remaining grounds of judicial review. In the light of these developments, it is not necessary for me to consider the adjourned PII issues, nor is it necessary for me to make any order for disclosure of documents.

It is right to record that, although there were a number of documents for which PII was claimed which I would have ordered to be disclosed, I have not to date identified any information which I would have ordered should be disclosed only on confidentiality terms. At a hearing on Thursday 29 November 2012, Ms Rose QC asked for consideration to be given to disclosure of parts of the “confidential” and “closed” judgments in Maya Evans subject to confidentiality terms. If the case had proceeded it would have been necessary for me to consider Ms Rose’s application. As it turned out, that was not necessary.