National Asociation of Probation Officers, R (on the application of) v Secretary of State for Justice

In judicial review proceedings, disclosure is governed by whether it is necessary to resolve the issues fairly and justly on the particular facts. Disclosure is not automatic merely because Convention rights are engaged. Where disclosure is justified, it should generally be ordered unless a public interest requires non-disclosure. A document relied on as significant by a public authority will ordinarily be exhibited, although disclosure may be refused where the document adds no value beyond an adequate summary, is diffuse or speculative, or would be disproportionate. Commercial confidentiality may ordinarily be addressed through a confidentiality ring. An interlocutory disclosure court should avoid prejudging the scope or merits of the substantive claim.

The claimant, a trade union representing probation officers, sought disclosure from the Secretary of State for Justice concerning the testing and proposed sale of community rehabilitation companies. The application was made urgently because a decision whether it was safe to proceed to contract award was expected shortly, followed by contract exchange and share sales.

The claimant intended, if the sale proceeded, to seek permission for judicial review on public safety, rationality, proportionality and Article 3 grounds. The Secretary of State resisted disclosure as excessive, disruptive and commercially sensitive. The central issue was which existing documents and data were sufficiently relevant and useful to require disclosure before the substantive claim was determined.

The application was granted in part. Mr Justice Irwin applied the principles stated in Tweed v Parades Commission for Northern Ireland [2007] 1 AC 650.

1. Applicable approach. The prime question was whether disclosure was necessary on the particular facts to resolve the matters fairly and justly. Convention rights did not make disclosure automatic. Where the interests of justice required disclosure, it should be ordered unless a public interest required non-disclosure. Documents relied on by a public authority as significant to its decision should ordinarily be exhibited, but summaries could suffice where the documents themselves added no value.
2. Scope of the interlocutory inquiry. The court should not pre-empt the approach that might be taken at the substantive hearing, particularly where the application was made urgently and the claim might include a system or proportionality challenge. The claimant’s political motivation was irrelevant to the legal issues. The alleged chilling effect on officials was given little weight because it was unsupported by evidence. Any established commercial confidentiality could be managed through a confidentiality ring.
3. Documents ordered. Disclosure was ordered for the complete test gate 4 report and annexes, any existing supplementary summaries and risk-rating documents, centrally held or retrievable hard data concerning offender escalation requests, relevant ICT access records, existing training, guidance and briefing documents concerning ICT changes, available vacancy figures, the operational tests report relied on by the witness, test gate 5 material, checkpoint 1, and end-state realisation checks. Existing documents were required; the defendant was not required to create new documents, save for appropriate electronic interrogation where the relevant data existed in corporate systems.
4. Requests refused or limited. Disclosure was refused for intermediate board material, interview records, moderation material, judicial-group meeting results, conference-call records and other diffuse, anecdotal, ill-defined or non-quantified material. The draft HMI Probation report was not ordered for immediate disclosure, but the Secretary of State was expected to identify and, within the confidentiality ring, attach relevant portions of any draft report considered in making the decision. Permission was given to apply in writing if compliance with the searches proved impossible or disproportionate.
5. Costs were reserved to the judges hearing the substantive case. Permission to appeal was refused.