Mohamed, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs

Where a public authority seeks to redact material from a judgment on national-security grounds, it must present evidence and argument sufficient to permit the court and other parties to address the issue. A public authority cannot obtain interim relief and then reserve its substantive case for an appeal. The court may publish material where the alleged secret is already in the public domain and disclosure would not reveal protected intelligence. Confidential disclosure will not necessarily be ordered where its utility depends on access to other material subject to unresolved public-interest-immunity issues. Permission to appeal may be granted on important questions of principle, while exceptional costs orders should not be made before the position of legal-aid funding is known.

This was the sixth open judgment in judicial-review proceedings brought by Binyam Mohamed against the Secretary of State for Foreign and Commonwealth Affairs. The judgment concerned the aftermath of the court’s fifth judgment, parts of which had been handed down in redacted form after objections from the Security Services and the Foreign Secretary on national-security grounds.

The court considered whether further passages should be restored, whether the redacted material should be disclosed to the parties within a confidentiality club, permission to appeal, and costs. The central issues were whether the Foreign Secretary had adequately supported the proposed redactions and whether the court should permit further disclosure pending an appeal.

1. Redactions. The court rejected the Foreign Secretary’s contention that four passages of the fifth judgment should remain redacted on national-security grounds. The passages were central to the reasoning, and the court found that their entire content was already in the public domain. The material did not disclose intelligence secrets or information about the actions of Pakistan. The court therefore directed that the fifth judgment be finalised with the passages restored, while the public version would retain the four redactions pending the Court of Appeal’s decision.
2. Procedural fairness and evidence. Having obtained interim relief, the Foreign Secretary could not withdraw from the redaction issue, provide no further evidence, or reserve argument for the appeal. Subject to confidentiality and national security, the other parties were entitled to respond to the case advanced. The court was entitled, as author of the judgment, to consider alternative wording that would disclose more of its reasoning without creating a national-security risk.
3. Confidentiality club. The court refused to disclose the redacted passages on confidentiality undertakings. Such disclosure would serve no useful purpose unless the recipients could also see paragraphs of the first judgment that were subject to a continuing public-interest-immunity claim. If the Foreign Secretary succeeded on that claim in the appeal, confidential disclosure of related material would not be in the public interest.
4. Permission and costs. Permission to appeal was granted because the issues raised important points of principle. The urgency of the appeal was for the Court of Appeal to determine. An exceptional order requiring the Foreign Secretary to pay costs in any event was premature because the court had no details of the Legal Services Commission’s proposed funding. The court ordered an interim payment of £85,000, awarded the claimant the costs of the redaction issue, and made no order as to the costs of permission to appeal.

• High Court (Administrative Court): The present judgment followed earlier judgments in the judicial-review proceedings, including the fifth judgment handed down in redacted form. The court restored some material in the final version, retained four passages in the public version pending appeal, refused disclosure through a confidentiality club, granted permission to appeal, and made consequential costs orders.