THE DUKE OF SUSSEX (R on the application of) v SECRETARY OF STATE FOR THE HOME DEPARTMENT

The parties have, by reference to the above categories, considered the contents of the Confidential Statement and the witness statements and exhibits, and have identified the parts of these documents falling within those categories.

So far as concerns the Confidential Statement the parties’ application is to the effect that I should exercise the power to edit at CPR 5.4C(4)(c) so that were any non-party to request the court to supply a copy of the Confidential Statement, that person would be provided with a copy of the edited version. If the person wished to obtain a copy of the unedited Confidential Statement she would have to make an application on notice to the parties, which would then be decided by the court on its merits.

I accept that the categories identified by the parties do identify matters that should, at least prima facie, be edited from any publicly available version of the Confidential Statement. I say prima facie because any person will still be able to make an application under CPR 5.4C to be provided with an unedited version of the Confidential Statement and on that application to contend that some or all of the passages that are for now edited, should be made publicly available.

The principle of open justice encapsulates important public interests. The courts should, to the full extent possible, work in public. This fosters public confidence in the integrity of judges and the judicial process. This objective is served by public access to court documents. Proper public scrutiny of the judicial process requires that the public has access to information about claims litigants bring to court. CPR 5.4C, which provides for the possibility of public access to statements of case, is one means to this end. Both parties referred me to my judgment in R(Yar) v Secretary of State for Defence [2021] EWHC 3219 (Admin). In that case, taking account of the leading authorities (R(Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2013] QB 618 and Dring v Cape Intermediate Holdings Ltd [2020] AC 629), I summarised the position as follows:

“8.

… when all other matters are equal, requests by non-parties for copies of documents that have been placed before a judge or referred to in proceedings in some material way in open court ought to be allowed. However, the specific circumstances of each application must be carefully considered to determine whether the default position should be reflected in the final order on the application. Toulson LJ's “default position” is just that, no less but no more.

9.

As to which specific circumstances may be material, both Guardian News and Media and Dring are authority for the proposition that the reasons for the request could be relevant to whether the court’s final decision on the application corresponds to the "default position". In Dring the court stated, “it is for the persons seeking access to explain why he seeks it and how granting him access will advance the open justice principle”. Both courts also assumed that in this regard, journalists would be better placed than others: see Guardian News and Media per Toulson LJ at paragraph 85; and Dring per Baroness Hale at paragraph 45. Both judgments are binding on me. Nevertheless, some care is required. First, the premise of the open justice principle is that it is in the public interest for those who are not parties to proceedings to have access to documents used in court so as to better understand the proceedings. This purpose is pursued regardless of whether the person making the request is a journalist. Second, it seems optimistic (or possibly unrealistic) to assume that in every instance where the request is made by a journalist the objective of the open justice principle will be better or more affectively achieved through material that the journalist might publish, other than in the loosest sense. Although a court ordering provision of a document to a journalist (or any other person) might in principle impose conditions on the use that could be made of the information (for example, in exercise of the power at CPR5.4C(4)), in practice it would be invidious for any court to attempt to use that power to distinguish between journalistic purposes that further the open justice principle and those that might not, let alone to encourage how the former might be pursued. 

10.

… it seems to me that in most instances the primary relevance of the fact that the person requesting documents is a journalist seeking the material in pursuit of her work, will be as counter to any claim that the documents were sought for some purpose that would harm the legitimate interests of others, whether parties to the litigation or other non-parties.

11.

Apart from this, the other matter that may affect the outcome otherwise produced by the default position will be the possibility of prejudice consequent on disclosure; either prejudice to one or both of the parties to the claim; or to other non-parties; or to some identifiable public interest.”

The latter point was a reference to the judgment of Baroness Hale in Dring, at paragraph 46. In the present case, the parties’ proposal to edit the Confidential Statement is appropriate. The derogation from the open justice principle consequent on the editing requested is marginal. The matter in issue between the parties is the legality of decisions on the arrangements to be made for the Claimant’s security. The legality of those decisions (the in-principle decision taken in February 2020, and the decision in 2021 on the specific arrangements for the Claimant’s security during a visit to the United Kingdom in June and July 2021) is challenged on four public law grounds: (1) that the relevant policy was applied too rigidly; (2) that regard was not had to relevant considerations; (3) that the decisions were unreasonable in the Wednesbury sense of the word; and (4) that the Claimant was prevented from making effective representations prior to each decision because he did not have enough information about RAVEC’s criteria for provision of security and did not know who the decision-makers were. Removal from the Confidential Statement of the details the parties say should be edited, will not prevent any person understanding either the key matters that give rise to the litigation, or the issues that the court will be called on to decide.

Conversely, editing that information out will avoid the risk that putting information into the public domain concerning security arrangements made on past occasions, and the general approach to whether and if so what arrangements should be made, may impair the effectiveness of arrangements in place now, or which may be put in place in the future. In some instances, the risk arising is obvious from the description of the category of information. This is so for each of categories (i) to (v). Information about these matters would self-evidently be of interest to anyone wishing to harm a person within the scope of the security arrangements and would assist them to piece together previous practice with a view to anticipating present or future security provision. I explain this conclusion in more detail in the Confidential Annex to this judgment. All the matters the parties invite me to edit from the Confidential Statement fall within categories (i) – (v). The Confidential Statement does not include any information within categories (vi) or (vii).

The parties have also identified passages in the witness statements and exhibits which comprise information within the categories listed in the Application Notice (see at paragraph 9 above). So far as concerns these documents, the draft order is to the effect that the passages identified should be redacted, and that any person requesting a copy of any of these documents from the Court records should be provided only with the redacted version.

The CPR makes specific provision for statements of case: the specific power at 5.4C(4) pre-emptively to edit statements of case. But that power is not expressed to extend to any other document on the Court record. That may not rule out the possibility of applying an editing process to other documents (whether pursuant to other powers under the CPR or in exercise of the Court’s inherent jurisdiction) as and when an application under CPR 5.4C(2) is made. But this is not a matter that needs to be resolved at this stage.

For now, other steps are sufficient to hold the ring. The CPR provides (a) that a non-party may obtain documents on the Court record other than statements of case, only with the court’s permission (CPR 5.4C(2)), and (b) that an application must be made for that purpose (CPR 5.4D). For now, it is sufficient to require, in exercise of the power at CPR 5.4D(2), that any application for permission to obtain a copy of any of the witness statements or exhibits filed by the Claimant should be made on notice to the parties. This will ensure that neither the witness statements nor the exhibits will be provided to any non-party without full consideration of the merits of the position.

As a means of reinforcing this protection, and having regard to a provision that featured in the application made by the Claimant in September 2021, I suggested the parties agree an order to the effect that they would not, without permission of the court, provide to any non-party any copy of any witness statement or exhibit filed in these proceedings. The parties agreed to this and the order to be made consequent on this judgment will contain provision to that effect.

The Claimant requests anonymity for one person who has filed a witness statement in the proceedings. The Defendant does not oppose the application. By CPR 39.2(4) the court must anonymise a witness if it considers it necessary to secure the proper administration of justice and to protect the interests of the witness. I accept that that requirement arises for the witness concerned, who has been identified as Witness X. An order protecting his anonymity will be made. The reasons for this conclusion are set out in the Confidential Annex to this judgment.

I asked the parties to make submissions on the relevance of certain parts of the evidence filed in support of the Claimant’s claim: one paragraph in the Claimant’s witness statement; four paragraphs in the witness statement filed by Mr Robinson; and passages in five documents exhibited to the Claimant’s witness statement. My concern was that these matters were irrelevant or duplicative. Pursuant to CPR 32.1 the court has the power to give directions to control evidence in proceedings which includes the power to direct that a witness statement or exhibit be re-served omitting irrelevant or duplicative material.

The Claimant accepted that one document was duplicative, and that a further document was irrelevant. These documents need not form part of the evidence in this case. The relevance of one of the five documents was satisfactorily explained and need not be further considered in this judgment.

What remained in dispute was (a) the relevance of passages in two documents already contained in the exhibit to the Claimant’s statement; (b) whether the Claimant should have permission to add to the exhibit an additional document, produced during the private part of the hearing; (c) the relevance of paragraphs in the Claimant’s witness statement and Mr Robinson’s witness statement. The Claimant’s submission was that since the litigation is at an early stage (time has not yet come for the Secretary of State to file her Acknowledgement of Service and Summary Grounds of Defence), I should be cautious before forming any view that evidence filed is irrelevant. Such a decision might be proved wrong as the litigation progressed. For example, information that appeared irrelevant might become relevant in light of the defence to the claim. The Claimant also submitted I should not attempt to draw fine distinctions between relevant and irrelevant matters within a single document. Rather than attempt such a task it is better (so the submission went) to leave all evidence in place and assess the matter in the round when the time comes for the final decision on the claim.

I accept that in principle a wait and see approach will be appropriate in many instances. However, much depends on the nature of the claim and the issues arising. It is important that this is a claim for judicial review. In these proceedings the court only assesses the legality of a decision by reference to the well-known public law principles. The court is not a finder of fact. Moreover, the primary focus is usually limited to matters such as what the decision-maker did, how the decision was taken, and the reasons for the decision. This makes it easier, even at an early stage in litigation, to take a realistic view on whether or not evidence is relevant.

There is much less to be said for the submission that evidence already filed may turn out to be relevant in light of the defence to the claim. In this case there has already been detailed pre-action correspondence. That has helped identify the nature of the defence to the claim. In any event, if the defence to a claim requires further response from the claimant, including additional evidence, the claimant has the right to apply to file evidence in reply. There is no need to file evidence when the claim is commenced only on the off-chance that later in the proceedings it might become relevant. It may just as likely never become relevant.

On consideration of the matters in dispute I have concluded that the evidence filed in support of the claim does include irrelevant evidence which for that reason is inadmissible and should be excluded from the proceedings. The detail of my reasons is in the Confidential Annex to this judgment.

After the draft of this judgment went to the parties for the usual purpose of checking for typographical or other minor errors, the Claimant volunteered further written submissions to the effect that reasons for my conclusion that irrelevant evidence had been filed should appear in this part of the judgment, not the Confidential Annex. I do not accept this submission. Submissions on the relevance issue were made in the part of the hearing that took place in private because any other course would have defeated the purpose of the exercise. The Claimant did not suggest otherwise. The course the Claimant now suggests would require the publicly available part of the judgment to include reference to the substance of the irrelevant information. That too would defeat the purpose of the exercise while serving no public interest.

Legal proceedings do not exist for the purpose of permitting parties to put irrelevant matters in the public domain, and the court must be astute to ensure that proceedings, legitimately pursued, do not become the occasion to publicise irrelevant material. The Claimant relies on the open justice principle. But no part of that principle requires irrelevant material be the subject of a reasoned public judgment simply for the purposes of explaining why it is irrelevant and ought not to have been part of the proceedings at all.

Next, the Claimant relies on the fact that the irrelevant material, having been excluded from the proceedings, would no longer fall within the provision to be included in the Order consequent on this judgment that the parties will not, without permission of the court, provide to any non-party any copy of any witness statement or exhibit filed in the proceedings. That submission is correct so far as it goes, but it says nothing to support the contention that irrelevant material need be the subject of detailed consideration in a public judgment, and for the avoidance of doubt, nothing in this judgment, and nothing that has occurred in these proceedings provides reason (for the Claimant or anyone else) to disclose the material now excluded from these proceedings.