Al-Sweady & Ors, R (on the application of) v Secretary of State for Defence

Public interest immunity depends on complete accuracy in Ministerial certificates and schedules. Government departments must provide the court with full and accurate explanations of all facts relevant to the issue. Where disclosure is resisted on national security grounds, the court must identify the public interest in disclosure, assess any real risk of serious harm, consider whether limited disclosure or another protective measure is sufficient, and balance the competing interests. If the court discovers that an earlier ruling was made on a materially false or incomplete basis, it should correct the position promptly. Until reliable procedures are demonstrated, the court may approach further certificates from the department with considerable caution.

The claimants sought judicial review concerning alleged killings, ill-treatment and unlawful detention by British forces in Iraq, and sought a new independent and effective investigation under Articles 2 and 3 of the ECHR. During the proceedings, the Secretary of State relied on a Ministerial public interest immunity certificate and schedule to resist disclosure of material concerning tactical questioning.

The court had previously upheld almost all the redactions. It later emerged that substantial material had already been disclosed in the Payne court martial and that inconsistent disclosure decisions had been made in connection with the Baha Mousa Inquiry. The court therefore reconsidered its earlier rulings and the continuing redactions.

1. Public interest immunity. The court held that the integrity of a Ministerial certificate and schedule is essential. The court must be able to rely on their complete accuracy, particularly where the sensitive schedule cannot be challenged by the party seeking disclosure and national security considerations require weight to be given to the Minister’s assertions. The duty of central government to assist the court with full and accurate explanations was emphasised by R (Quark Fishing) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409.
2. Balancing exercise. The court applied the approach in R v Chief Constable of West Midlands, ex p Wiley [1995] 1 AC 274, as formulated for these proceedings in R (Binyam Mohammed) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 152 (Admin). The questions were whether there was a public interest in disclosure; whether disclosure created a real risk of serious harm to an important public interest; whether that risk could be protected by another method or more limited disclosure; and, if not, where the balance of public interest lay. The court also proceeded on the ordinary disclosure approach in CPR Part 31.6, given the similarities between the proceedings and a Queen’s Bench action, following Tweed v Parades Commission for Northern Ireland [2007] 1 AC 650.
3. Effect of the disclosure failures. The original rulings had been made on a materially false basis and were wrong. The court stressed that a possible error or misleading assertion must be brought to the court’s attention immediately. Until the Ministry of Defence demonstrated that its procedures had been remedied, its future Ministerial certificates and schedules should be approached with very considerable caution.
4. Disposition. The court approved the amended Annex A and ordered disclosure of the identified redacted extracts. It maintained the earlier rulings refusing disclosure of the remaining redactions.