Secretary of State for the Home Department v HM Senior Coroner for Surrey & Ors

The High Court has jurisdiction to determine a public interest immunity application arising from an inquest where the issue cannot lawfully or practically be resolved within the coronial process. That jurisdiction is exceptional and should be exercised only as a last resort to avoid real injustice. The court may use either CPR r 31.19 or its inherent jurisdiction, provided the parties are given a fair opportunity to make representations.

Where national security material is concerned, the Government’s policy of restricting access to High Court and Circuit judges, unless a coroner is appropriately qualified, is lawful. On the evidence, the public interest in protecting the material outweighed the public interest in disclosure. The existing coroner could not conduct a full and fair inquest without seeing the withheld material, so a replacement coroner able to examine it was required.

The Secretary of State applied under Part 8 of the Civil Procedure Rules for permission not to disclose sensitive security and intelligence material in an inquest into the death of Alexander Perepilichnyy. The Senior Coroner for Surrey had requested material concerning possible threats, third-party involvement and contacts before the death, but could not view the underlying sensitive material because he did not have the necessary status or security clearance.

The Coroner had received a confidential gist and submissions but considered them inadequate. He accepted that he could not conduct the necessary public interest balancing exercise. The issues were whether the High Court had jurisdiction to determine the claim and, if so, whether it should exercise that jurisdiction. A further question concerned the continuation of the inquest if non-disclosure were ordered.

1. Jurisdiction. The High Court, as a superior court of record with general jurisdiction under section 19 of the Senior Courts Act 1981, had jurisdiction to determine the PII application. Paragraph 2(2) of Schedule 5 to the Coroners and Justice Act 2009 preserved the ordinary law of PII and did not clearly oust the High Court’s jurisdiction.
2. Procedure. CPR r 31.19 was the preferable procedural route, although the same application could be dealt with under CPR r 40.20 and the court’s inherent jurisdiction. Interested persons had no automatic right to participate in the High Court hearing, but fairness required that they be allowed to attend and make submissions to the same extent as before the inquest.
3. Exercise of jurisdiction. The inherent jurisdiction was confined to exceptional cases and was a remedy of last resort. This was such a case. The inquest had reached an impasse, the PII issue could not be resolved by the Coroner, and further delay was intolerable. The High Court therefore had to determine the application.
4. Access to sensitive material. The policy restricting access to sensitive security and intelligence material to High Court and Circuit judges, rather than senior coroners generally, was lawful and rational. The court declined to require a separate demonstration that disclosure to the particular Coroner would itself create a real risk of serious harm.
5. PII. Having examined the material in open and closed proceedings, the court accepted that disclosure would create real and significant damage to national security. The public interest in non-disclosure outweighed the public interest in an open inquest. The certificate was upheld and non-disclosure of the gist, Bundle A and the sensitive schedule was permitted.
6. Further conduct of the inquest. The Coroner could not conduct a full and fair inquest without seeing relevant material covered by the PII ruling. The Chief Coroner was required to arrange for a replacement coroner able to view it. The new coroner was required to keep PII under review and consider the relevance of questioning, the risk of misleading conclusions and whether a public inquiry was necessary.

First instance decision. The judgment does not state any earlier judicial decision in the same litigation.