Mohammed, R (On the Application Of) v The Secretary of State for Defence

A court considering a claim for public interest immunity may, after examining the material and deciding that complete immunity is unnecessary, order disclosure to identified lawyers within a confidentiality ring. The procedure is distinct from a closed material procedure and from premature disclosure of documents before the PII claim has been determined. The legal team must consent and be satisfied that it can continue to act without harming the client’s interests, although consent is not by itself decisive. Objections concerning inadvertent disclosure, vetting and practical difficulty are matters for the circumstances of the particular case. They do not establish a general legal prohibition.

The claimant brought judicial review proceedings concerning the proposed transfer of detainees to Afghan authorities, alleging breaches of Articles 2 and 3 of the Convention and pursuing an associated damages claim. The Secretary of State claimed public interest immunity over information in numerous documents.

The claimant proposed that material which was not entitled to complete immunity should be disclosed only to specified members of his legal team. The Secretary of State relied principally on Somerville v Scottish Ministers and Al Rawi v Security Service to contend that such a confidentiality ring was impermissible.

The court ruled on the legal principle before determining individual PII claims. The claimant later discontinued the remaining grounds after the Secretary of State re-imposed a moratorium on transfers. The central issue was whether a confidentiality ring was legally available after the court had considered the PII claim.

1. Principle. There was no principle preventing a court, after considering the documents and the claim for public interest immunity, from deciding that complete immunity was unnecessary and ordering disclosure only to identified lawyers within a confidentiality ring on specified terms.
2. The fundamental requirements of open justice, fair trial and the ability to know and answer the opposing case remained important. A confidentiality ring impaired communication between lawyer and client, but that impairment did not necessarily undermine a fair judicial review. The significance of the impairment depended on the circumstances and the material concerned.
3. The legal advisers’ consent was a necessary safeguard. They should not consent unless satisfied that they could continue to act under the restriction without harming the client’s case. Their consent was not, however, dispositive, because the court retained responsibility for balancing the public interest in immunity against the public interest in the administration of justice.
4. Somerville v Scottish Ministers was distinguishable. There, counsel had been given access to unredacted documents before the court decided whether the PII claim was valid. The proposed ring would operate only after the court had considered the documents and ruled that complete immunity was unnecessary. It therefore did not pre-empt the PII decision.
5. Al Rawi v Security Service established why a closed procedure could not replace the ordinary PII process, but did not decide the distinct question of a consensual, post-determination confidentiality ring. R v G, R v Davis and R v Chief Constable of West Midlands Police, Ex p. Wiley supported the availability of flexible and restricted disclosure arrangements in appropriate circumstances.
6. Concerns about inadvertent disclosure, vetting, training and communications with persons outside the ring were case-specific practical matters. They might justify refusing a ring in a particular case, especially where the material could not be precisely defined, but did not create a rule of principle against one.
7. The remaining PII issues and disclosure orders became unnecessary after the Secretary of State re-imposed the transfer moratorium and the claimant served notice discontinuing the remaining grounds. No further order for disclosure was made.

First-instance Administrative Court proceedings. The claimant discontinued the remaining grounds before the outstanding PII issues and disclosure orders were determined.