Secretary of State for the Home Department v IM & Ors

Open justice is a strong common-law principle, but it is not absolute. A court may conduct a hearing in private, and restrict dissemination of evidence, where the circumstances provide a good reason or protection of a child’s interests requires it. Where Article 8 privacy rights and Article 10 rights of public reporting are engaged, neither has automatic precedence. The court must focus intensively on the specific facts and assess the precise scope of the restriction sought. Evidence concerning a child’s private life and emotional well-being may justify a private hearing and redaction, even where the application is limited and the evidence is likely to be harmful without express expert evidence.

The Secretary of State had imposed terrorism prevention and investigation measures on IM, JM and LG. Their review hearings were to be heard together. At a case-management hearing, IM applied for parts of his evidence concerning a third-party minor to be heard in private and for those passages to be redacted from copies served on JM and LG. The application was based on the minor’s privacy and emotional well-being. It was unopposed by the Secretary of State and the other respondents. The issue was whether the court should exercise its powers under the Civil Procedure Rules to protect the minor while preserving open justice.

1. Application granted. The court accepted that wider dissemination of the evidence and its ventilation in public would be likely to harm the minor’s private life and emotional well-being. The evidence concerned only the minor.

2. Open justice was the starting point, but the principle was not unyielding. Civil Procedure Rules 1998, rule 80.18(1), permitted closed-session proceedings where the TPIM regime required it, and rule 80.18(2) gave the court a discretion to conduct a hearing or part of it in private for any other good reason. Rule 39.2(3)(d) separately recognised protection of a child’s interests as a basis for private proceedings.

3. The minor’s Article 8 rights were engaged. When those rights conflict with the public’s Article 10 interest in being informed about court proceedings, neither right automatically prevails. The court must focus intensively on the particular facts and on the precise restriction sought, applying the approach in Re S (A Child) (Identification: Restrictions on Publication), [2005] 1 AC 593.

4. The same fact-sensitive approach was consistent with Al Rawi v Security Service, [2012] 1 AC 531, ZH (Tanzania) v Secretary of State for the Home Department, [2011] 2 AC 166, and In Re Guardian News and Media Ltd, [2010] 2 AC 697. The limited nature of IM’s application was material: it did not seek to restrict the Secretary of State’s open evidence or evidence concerning the effect of the TPIM on IM, but only material directly concerning the minor.

5. The order was made subject to a limited opportunity for interested persons, including the Press Association, to apply for it to be set aside or varied. The court cautioned that the order concerning service of evidence did not predetermine any later restriction in the final judgment.

First-instance decision. No earlier appellate decision is stated in the judgment.