Kimathi & Ors v The Foreign And Commonwealth Office

A redaction order permits only the deletions, and any strictly necessary grammatical insertions, required to reflect the court’s ruling. It does not authorise substantive additions to an opening. Previously disclosed documents may be substituted where they support substantially the same point and cause no material prejudice, but late documents not previously adduced will generally be refused at a late stage of trial.

Parliamentary material may be used to establish the fact that a topic was discussed in Parliament. The court may consider what inference, if any, follows from that fact. It may not examine the contents of the debate or use the material to prove the truth of statements made in Parliament where that would infringe parliamentary privilege.

The claimants sought directions concerning a revised opening following an earlier ruling on the admissibility of Hansard, given in [2017] EWHC 3379 (QB). They sought to add text, rely on alternative documents in place of excluded parliamentary material, and use 27 Hansard documents solely to establish that specified topics had been discussed in Parliament.

The defendant objected that some proposed additions were substantive, that several documents had not previously been adduced, and that the proposed use of Hansard invited impermissible inferences from parliamentary proceedings. The court determined the scope of the redaction order, the admissibility of replacement documents, and the permissible use of the Hansard schedule.

1. The court allowed the revised Schedule 2 Hansard documents to be relied upon solely to establish that the relevant topics were mentioned or discussed in Parliament. The documents were admitted for what the schedule stated on its face. Their contents were not to be examined.

2. A redacted version of an opening may contain limited text necessary to make the remaining wording grammatically coherent. The order did not authorise the claimants to add substantive material or new submissions. Proposed additions therefore required careful scrutiny alongside the applications to rely on alternative documents.

3. Previously adduced documents could generally be substituted where they made the same or a substantially similar point to the excluded Hansard material and caused no material prejudice. The court refused, at that stage of the trial, reliance on new documents which had been disclosed but not adduced, subject to the particular decisions recorded in the Scott schedule.

4. The court distinguished between proving the fact that Parliament discussed a topic and analysing what was said in the debate. The former was permissible. Any inference drawn from the fact of discussion could be addressed in final generic submissions, but the contents of the parliamentary proceedings could not be examined to support conclusions about the accuracy, motivation, questioning, doubt or affirmation involved in the debate.

5. The court held that the general statement attributed to the Coulson case, that inviting inferences from anything forming part of parliamentary proceedings was always off limits, was too broad when treated as applicable in all circumstances. The court’s formal conclusions were that Schedule 2 was admitted on the limited basis stated and that redactions, insertions and further documents were permitted or refused as set out in the annexed Scott schedule.

The judgment records an earlier procedural ruling in the same proceedings concerning Hansard admissibility: [2017] EWHC 3379 (QB). The present court gave further directions and ruled on the revised opening, replacement documents and Schedule 2 Hansard material.