The London Borough of Tower Hamlets v M & Ors

Public interest immunity requires a structured three-stage assessment. The court must determine whether the material is relevant and disclosable, whether disclosure creates a real risk of real damage or serious harm to an important public interest, and, if so, whether the public interest in withholding the material outweighs the public interest in disclosure.

National security attracts particularly substantial weight. The court may accord considerable respect to the responsible Minister’s assessment, while conducting the balancing exercise itself. Other available evidence and alternative safeguarding measures may be relevant, but cannot outweigh national security where disclosure presents a real and significant risk of damage.

These care proceedings concerned a child whose parents had been questioned under Schedule 7 to the Terrorism Act 2000, and whose father had been refused a replacement passport. The Secretary of State for the Home Department applied for public interest immunity in respect of sensitive material sought under earlier disclosure orders.

The court considered the procedural history of the delayed application, the parties’ submissions, the available open evidence, national security concerns, and possible alternative safeguarding measures. The central issue was whether the claim for public interest immunity should be upheld under the applicable balancing exercise.

1. The Secretary of State’s claim for public interest immunity was upheld. The court accepted that the material was relevant and, in principle, disclosable.

2. Applying the three-stage approach identified in R v Chief Constable of the West Midlands Police, ex parte Wiley [1995] 1 AC 274, the court considered whether disclosure would cause real damage or serious harm to the public interest. On the closed material and sensitive schedule, it concluded that disclosure created a real and significant risk of damage to national security.

3. National security was the most significant factor against disclosure. The court accorded great respect to the Secretary of State’s assessment, particularly because it concerned defence, national security or diplomatic secrets, while undertaking the required balancing exercise.

4. The court considered the public interest in protecting children, the importance of open justice, the available evidence, and alternative measures including the Channel Programme, the Desistence and Disengagement Programme and passport restrictions. Those matters did not outweigh the national security interest. The type of order sought in the care proceedings would not alter that conclusion.

5. The open evidence, including airport stops, police evidence and the passport refusal, could be considered in deciding whether the threshold criteria were met. The passport decision was relevant evidence but was not, by itself, sufficient to establish the threshold.

6. The court also observed that the sensitive material was unlikely to advance the local authority’s case significantly and could not be used by it in the proceedings or for expert intervention. Earlier and more decisive handling of potential public interest immunity claims was strongly encouraged to avoid delay.

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