A, R (on the application of) v Secretary of State for Defence

In disclosure proceedings, the court may resolve outstanding issues incrementally where the relevance and confidentiality of material require further information. Material relating to alleged mistreatment may be relevant even where the alleged events occurred outside the immediate scope of an inquiry, particularly where the allegations concern restrained detainees. Where disclosure is resisted on grounds of the International Committee of the Red Cross’s confidentiality practice and possible prejudice to future investigations, the court may first seek the organisation’s up-to-date views and determine whether further material exists before deciding whether inspection or disclosure should be ordered.

The claimant and the Secretary of State for Defence were engaged in proceedings concerning disclosure. Most disclosure issues had been resolved by agreement. Two matters remained contentious: access to and testing of an original exhibit held by the Ministry of Defence, and disclosure of material supplied by the International Committee of the Red Cross concerning allegations by detainees of assault after capture while handcuffed or restrained.

The court was asked to determine the appropriate immediate directions, including whether the ICRC material should be treated as irrelevant or whether the position should be investigated further before the court ruled on disclosure.

1. The proposed arrangement for physical inspection of original exhibit KRB 1 by the claimant’s solicitor and expert was accepted. Any proposed testing was to be notified to the Secretary of State so that the document’s integrity could be protected and consideration given to expert evidence, including a joint report.
2. The court was not persuaded at that stage that the ICRC material was irrelevant merely because it concerned events occurring outside the immediate ambit of the inquiry. Allegations that detainees had been punched and kicked while already handcuffed or restrained might be relevant to issues later requiring determination.
3. The court recognised the asserted confidentiality of ICRC investigative material and the potential prejudice to future investigations if such material were disclosed to third parties. The court recorded the submission that international law might ordinarily preclude disclosure without a balancing exercise, but did not finally determine that legal issue.
4. The appropriate course was to proceed in stages. The Secretary of State undertook to write to the ICRC, in neutral terms, seeking its views on disclosure to the court and, if necessary, to the parties. The claimant and the court could suggest amendments to the proposed letter.
5. The position was to be reviewed at a later directions hearing, with further representations, including potentially from the ICRC, and clarification of whether additional relevant material existed. The court indicated that it would wish to see the documents if satisfied that they were likely to be relevant.

Not stated in the judgment.