Yam, R (n the Application f) v Central Criminal Court & Anor

A domestic court may restrict disclosure of material heard in camera where disclosure would undermine national security or another compelling public interest. The right to petition the European Court of Human Rights is not a fundamental domestic common-law right, and access to that court is not absolute. The domestic court must balance the competing interests and act proportionately, but it must not determine whether its order complies with the Convention: that is for Strasbourg. Unincorporated international obligations do not dictate the exercise of a domestic statutory discretion, although they may inform it. The court’s inherent jurisdiction permits ancillary orders needed to make a confidentiality order effective. Such disclosure may also constitute publication for the purposes of section 12(1)(c) of the Administration of Justice Act 1960.

The claimant had been convicted of murder after part of his criminal trial was held in camera to protect sensitive information. The confidentiality order was continued on appeal. He later sought permission to disclose the material in an application to the European Court of Human Rights, but Ouseley J refused and clarified the order.

The claimant sought judicial review, alleging breach of access to the courts, incompatibility with the United Kingdom’s international obligations, and lack of statutory power under section 11 of the Contempt of Court Act 1981. The Divisional Court first considered its jurisdiction under section 29(3) of the Senior Courts Act 1981, then determined the substantive grounds.

1. Jurisdiction. The Divisional Court had jurisdiction to review an order restricting reporting or disclosure after the criminal trial had concluded. Permission was granted.
2. Access to Strasbourg. The right of individual petition under Article 34 of the Convention is a treaty obligation, not a fundamental domestic common-law right. Any executive action restricting access remains reviewable under ordinary administrative-law principles, including rationality and proportionality.
3. Balancing competing interests. Even if access to Strasbourg were treated as fundamental, it would not be absolute. A court may prohibit communication of confidential material where disclosure would seriously threaten national security or potentially the right to life. The court must itself balance the competing interests and determine whether the interference is proportionate; executive assertion alone is insufficient.
4. Role of Strasbourg. Articles 34 and 38 operate together. The claimant could present his complaint to Strasbourg and ask that court to obtain the material under Article 38. The domestic court should not usurp Strasbourg’s determination of whether the domestic order complies with Convention principles.
5. International obligations. Following R v Home Secretary ex parte Brind, unincorporated Convention obligations do not control the exercise of a domestic discretion. They may nevertheless be relevant considerations when the discretion is exercised.
6. Ancillary confidentiality powers. The inherent jurisdiction includes power to make ancillary orders securing the purpose of an order restricting access to information. Undermining such an order may constitute contempt. Section 12(1)(c) of the Administration of Justice Act 1960 supports that conclusion by extending the concept of publication to disclosure outside the protected circle where the court sat in private for national-security reasons.
7. The court expressed difficulty in deciding whether a private disclosure to Strasbourg staff would itself be publication under section 11 of the Contempt of Court Act 1981, but it was unnecessary to resolve that issue because the order was valid under the inherent jurisdiction and section 12. The application was dismissed.

The judgment itself records the earlier criminal proceedings and appeals:

• Court of Appeal Criminal Division: an interlocutory challenge to the in-camera order was dismissed: [2008] EWCA Crim 269.
• Court of Appeal Criminal Division: the claimant’s appeal against conviction, including the fair-trial argument, was dismissed: [2010] EWCA 2072.
• High Court (Administrative Court): permission for judicial review was granted, but the substantive application was dismissed.