Secretary of State for the Home Department v IM & Ors

IM is one of three people in respect of whom the Secretary of State for the Home Department (‘the SSHD’) has made the subject of a measure (a ‘TPIM’) under the Terrorism Prevention and Investigation Measures Act 2011. The other two are JM and LG. The Act requires the Court to hold a review hearing. There has previously been a direction that the review hearings for all three respondents should take place at the same time. Those hearings are due to take place over 3 weeks beginning on 20^th March 2017 before me.

At a case management hearing on 24^th February 2017, Mr Friedman QC on IM’s behalf applied for an order that part of the evidence he wished to adduce in opposition to the TPIM should be heard in private. He also applied for permission to redact parts of the written evidence which was to be served in advance of the hearing from the copies provided to the other two respondents. Subject to the qualification to which I shall come, I granted Mr Friedman’s application. I said that I would give my reasons in writing. This I now do.

The evidence in question concerns a third party minor. It provides detail as to that person’s experiences prior to and as a result of the TPIM being imposed on IM. The written evidence is part of the statement of IM, part of the evidence of his ex-wife, part of an expert report from an independent social worker, Christine Brown, and part of a psychiatric report of Dr Meena Naguib.

Mr Friedman provided copies of each of these documents marked up to show the passages he wished to redact. I have looked at all of them. I can confirm that all of the marked passages concern the minor in question and only that person. Mr Friedman’s written application was served on the other parties. In its unredacted form the evidence was served on the SSHD and the Special Advocate for IM. The evidence, redacted, was served on the representatives of JM and LG.

Mr Friedman argued that a wider dissemination of the unredacted evidence and the ventilation of that evidence at a public hearing would be harmful to the private life and emotional well-being of the minor. He accepted that there was no evidence which said in terms this would be its effect. However, he argued, that I could see for myself from the nature of the evidence in question that those consequences were likely to follow. Having looked at the marked passages carefully, I agreed.

Mr Friedman recognised that the starting point was that civil litigation in this jurisdiction was conducted in public. There was a strong common law principle in support of open justice. However, the principle was not unyielding. Part of the review hearing would be conducted in closed session because that was what the public interest required (see CPR r.80.18(1)). However, there was also a discretion to conduct a hearing or part of a hearing in private ‘for any other good reason’ – see r.80.18(2).

Mr Friedman argued that there was such a good reason in this case. Moreover, even outside the particular TPIM regime, the court could direct that a hearing or part of it be in private if that is necessary to protect the interests of a child – see CPR r.39.2(3)(d). Case law likewise recognised the consideration which had to be given to the privacy interests of children – see for instance Al Rawi v Security Service [2012] 1 AC 531 at CA at [33] and SC at [63] and ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166 at [33].

The child had Article 8 rights which were engaged by the evidence which Mr Friedman wished to redact. Where both Article 8 rights and the Article 10 right of the public to be informed of court proceedings were engaged, neither took automatic precedence: it was necessary to focus intensively on the specific facts of the case – see Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 at [17].

Mr Friedman recognised that in In Re Guardian News and Media Ltd [2010] 2 AC 697 the Supreme Court, in its first ever judgment, recognised the importance of free public reporting of an asset freezing case where a newspaper had challenged the anonymity conferred on the individual concerned, but there, too, the Court had repeated the importance of focussing on the individual facts of the case (see for instance [76]-[78]). In the present case, Mr Friedman emphasised the limited nature of his application. He did not seek to prevent the SSHD’s open evidence being heard in public. So far as the impact of the TPIM concerned IM, he sought no restriction. It was only material that bore directly on the minor in question.

Ms McGahey QC for the SSHD made no submissions on Mr Friedman’s application and neither of the other Respondents opposed it.

I accepted Mr Friedman’s submissions for the reasons that he gave as to the way in which the hearing should be conducted and the limitation he requested in terms of service of IM’s evidence on JM and LG. I made clear that IM should not assume that a similar differentiation would be made in any judgment I gave at the conclusion of the review hearings, though Mr Friedman would have the opportunity if necessary to make submissions at a later stage when a draft judgment had been prepared.

I have observed that there was no opposition to Mr Friedman’s application. I said that I was conscious that in such circumstances, those who might have an interest in putting forward a different view should have a limited opportunity to apply to have my order (as to the conduct of the hearing) set aside or varied. Subject to any submissions as to the precise terms, I have in mind that a copy of my order and this judgment should be served on the Press Association. Any such application as I have mentioned must be filed and served on the solicitors for the parties no later than Friday 3^rd March 2017.