Evans, R (on the application of) v Secretary of State for Defence

The court may reopen a closed judgment where circumstances have changed and conduct a fresh public interest immunity assessment. The issue is not a late appeal or review of the original decision. The court must balance the continuing public interest in non-disclosure against the public interest in open justice. A ministerial assessment of national-security sensitivity is important but does not determine the outcome. Disclosure may be ordered in a gist or digest where full disclosure would create unacceptable risk. Release from confidentiality undertakings should ordinarily extend only to material actually opened up or already in the public domain, not automatically to underlying evidence.

The applications arose from earlier judicial review proceedings concerning the transfer of detainees by UK forces to Afghan authorities. Those proceedings had resulted in an open judgment and a closed judgment, with documents disclosed to the claimant’s legal representatives subject to confidentiality undertakings.

After a substantially less redacted version of important evidence was disclosed publicly in later proceedings, Associated Newspapers applied for the closed judgment to be opened up. The claimant applied for variation or discharge of the undertakings and disclosure of related evidence. The Secretary of State carried out a fresh sensitivity review and claimed public interest immunity over remaining material.

1. Applications allowed in part. The court directed public disclosure of specified parts of the closed judgment and released the claimant and her legal representatives from their undertakings to the extent set out in the judgment.
2. The exercise was a fresh assessment based on changed circumstances and the Secretary of State’s acceptance that a new sensitivity review should be undertaken. It was not a late appeal against, or review of, the balance struck when the original judgment was given.
3. The court retained ultimate responsibility for deciding whether material should be disclosed. The Foreign Secretary’s assessment of national-security harm was entitled to considerable weight, but was not determinative. The court had to balance the continuing public interest in non-disclosure against the public interest in open justice.
4. Material in respect of which the Secretary of State no longer claimed immunity, including material already substantially placed in the public domain, no longer had sufficient justification for remaining closed. Confidential information concerning detainees was not opened in full because the risk of reprisals could not be excluded, but an agreed gist could safely be disclosed.
5. The remaining PII claim was upheld. The absence of ongoing proceedings meant that the usual disclosure interest in enabling the court to determine issues fairly was absent. Open justice remained a weighty consideration, but did not outweigh the continuing public interest in non-disclosure.
6. Disclosure of parts of the closed judgment did not justify disclosure of the underlying witness statements and exhibits. The undertakings were varied only for information contained in opened passages or documents already placed in the public domain.
7. The court declined to order periodic review or issue general guidance. The circumstances were unusual, future cases would be fact-specific, and Parliament had considered but not enacted a statutory review timetable.

Not stated in the judgment as an appeal. The applications concerned the reopening of material arising from earlier judicial review proceedings.