K & Ors v The Secretary of State for Defence & Anor

Pre-permission disclosure in judicial review remains exceptional. Even where proportionality or Convention rights are in issue, disclosure is ordered only where necessary to resolve the case fairly and justly, and it must be confined to the issues requiring it. At the permission stage, the court may make reasonable factual assumptions or supply limited factual deficiencies without ordering disclosure. Covert intelligence sources and overt locally engaged staff are materially different categories, so equal treatment cannot be presumed. Sensitive protection schemes involve political judgments which courts will supervise but will not replace without an arguable legal error.

Three Afghan nationals claimed that they had worked covertly for the defendants as human intelligence sources and faced serious threats as a result. They sought declarations, relocation assistance and compensation, relying on public law, private law and Convention arguments.

They applied for pre-permission disclosure of policies and documents relating to covert intelligence sources, locally engaged staff and their own alleged work. The claimants also sought permission to apply for judicial review, alleging unlawful failure to extend protection schemes or provide equivalent protection. The court considered whether disclosure was necessary and whether the proposed grounds were arguable.

1. Disclosure. The duty of candour in judicial review may require disclosure of relevant facts and documents, but ordinary disclosure is not required without a specific order under CPR 54 APD 12.1. Under Tweed v Parades Commission for Northern Ireland [2006] UKHL 53; [2007] 1 AC 650, disclosure may be more readily ordered in proportionality cases, but only where it is necessary for a fair and just resolution. It must remain carefully limited.
2. The court applied the approach in British Union for the Abolition of Vivisection v Secretary of State for the Home Department [2014] EWHC 43 (Admin). There is jurisdiction under CPR 31.16 to order pre-action disclosure in support of judicial review in rare cases. At the permission stage, however, the court could make up a limited factual deficiency itself if that enabled fair determination of arguability. The requested policy and claimant-specific disclosure was unnecessary. The disclosure application was therefore refused.
3. For permission, it was appropriate to assume that a policy for relevant covert intelligence sources existed and that its application had not produced benefits equivalent to those available under the locally engaged staff schemes. It was unnecessary to assume that individual files containing relevant documents existed.
4. The equal-treatment ground was not arguable. Covert intelligence sources and locally engaged staff occupy materially different positions. Locally engaged staff worked overtly for the British authorities, whereas covert intelligence activity was intended to remain confidential. No general legal principle required equal treatment in those circumstances.
5. The reasoning in R (on the application of AK (Iraq)) v Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 2227 (Admin) applied. Sensitive protection schemes involve competing considerations and political judgment. The court may supervise and critically review such schemes, particularly where threats to life arise, but the claim disclosed no arguable discrimination or irrationality. The Convention aspect was regarded as totally without merit. Permission to apply for judicial review was refused.

The judgment records that Burnett J had previously refused interim relief in K & Ors v The Secretary of State for Defence & Anor [2014] EWHC 3023 (Admin). The present court then determined the disclosure application and considered permission to apply for judicial review.