S v Secretary of State for the Home Department

A public authority must take reasonable safeguards when disclosing sensitive information obtained in the course of its public functions. Disclosure should be limited to what is necessary for the relevant public purpose and should protect against avoidable risks to the individual concerned. This duty reflects both confidentiality principles and good public administration.

In exceptional circumstances, a person outside the United Kingdom may bring a public law claim concerning conduct by a United Kingdom public authority which adversely affects him. Where disclosure creates a real risk of detention or ill-treatment on return, detention alone may justify a remedy. The court may apply the ordinary asylum standard of a real risk; in any event, relief may be granted where the higher standard of serious risk is met.

The claimant, a Sri Lankan national, was removed from the United Kingdom after his asylum claim had been refused. After his arrival in Sri Lanka, allegations that he had been detained and ill-treated at Colombo airport were disclosed in correspondence supplied to the Upper Tribunal during separate removal proceedings.

The disclosure included details capable of identifying him. The material was referred to in a public hearing and later appeared online and on Sri Lankan government websites. The claimant alleged that the disclosure caused the Sri Lankan authorities to identify him and placed him at risk of detention and ill-treatment. The issues were whether the disclosure gave rise to a public law claim, whether the claimant faced a sufficient risk on return, and what remedy should follow.

1. Disclosure and good administration. The defendant was entitled to inform the Upper Tribunal that a returnee had made allegations of torture which had been investigated and considered incredible. It was not necessary, however, to disclose identifying details or to do so without safeguards. The Tribunal should have received any necessary details on a confidential basis, with confidentiality maintained in any disclosure to the parties.
2. The absence of safeguards was, in all probability, a breach of confidence in light of the assurances given to the claimant’s representatives. It was also a failure of good administration applying the principle stated by Lord Bingham CJ in R v Chief Constable of North Wales Police, ex p Thorpe [1999] QB 396. A public body must not disclose potentially damaging information except to the extent necessary to perform its public duty.
3. Extraterritorial public law claim. Although the claimant was outside the jurisdiction and was not a member of the public in the domestic sense, the defendant owed an obligation not to take unnecessary action which placed him at risk on return. Such a claim was exceptional, but legally available in the circumstances.
4. Risk and remedy. The claimant had established at least a real risk, and in any event a serious risk, that the Sri Lankan authorities would identify him and detain him. The disclosure and its presentation as a false allegation created a risk of detention and possible ill-treatment. Detention without ill-treatment was itself an adverse consequence sufficient to justify a remedy.
5. The court did not need to decide whether the Human Rights Act 1998 applied outside the jurisdiction. The claimant could obtain the necessary relief through public law. The precise relief was reserved for further submissions.

First-instance judicial review claim. The judgment records that:

• High Court (Administrative Court) — Mitting J refused a separate fresh-claim challenge on 20 April 2012. Sullivan LJ refused permission to appeal, stating that the requested relief could be sought in fresh proceedings.
• High Court (Administrative Court) — the present claim succeeded. The precise relief was reserved.