FF, R (On the Application Of) v Director of Public Prosecutions

In public judicial review proceedings, the identity of a foreign official who is the subject of serious allegations should not ordinarily be concealed merely because the allegations are serious or the person holds high office in a foreign state. Once the official is to be served with the proceedings, continued confidentiality requires a proper legal or procedural basis. An order protecting the official’s identity may be discharged, but its operation may properly be suspended for a short period to allow an application for alternative protection.

The claimant sought judicial review of the Director of Public Prosecutions’ position concerning the possible immunity of Prince Nasser bin Hamad Al Khalifa in relation to allegations of torture in Bahrain. Permission had been granted by Foskett J. Ouseley J later directed service of the papers on Prince Nasser and the State of Bahrain. The claimant withdrew an application challenging that direction but maintained applications for anonymity and redaction concerning himself and another witness.

The Divisional Court was required principally to determine whether Prince Nasser’s identity should remain confidential once he was to be served with the proceedings, and whether the claimant and witness should retain anonymity.

1. Identity of defendant. The court discharged the order concealing Prince Nasser’s identity. Public proceedings should not conceal the identity of a defendant merely because serious allegations are made against him or because he holds a high position in a foreign state. There was no legal or proper-practice basis for continuing the protection once he was to be served with the papers. The court relied on the observations in Global Torch Limited v Apex Management Ltd [2013] EWHC 223 (Ch), which supported that conclusion.
2. Temporary suspension. Although the order was discharged, its operation was suspended for 14 days so that Prince Nasser could apply for a different outcome. The judgment was therefore given in camera for that limited purpose.
3. Claimant and witness. The claimant’s anonymity and the redaction of the other witness’s evidence were justified and were not contested by the Director of Public Prosecutions. Counsel were directed to agree the precise redactions.
4. The remaining issues, including service on Prince Nasser and Bahrain, were left for subsequent directions.

Permission for judicial review was granted by Foskett J on 28 January 2013. Ouseley J subsequently directed service of the papers on Prince Nasser and Bahrain. The claimant withdrew an application challenging that direction. The Divisional Court then determined the confidentiality and anonymity directions.