Secretary of State for the Home Department v IM & Ors

Disclosure from proceedings involving sensitive national-security material is not ordered merely because the material may assist related family proceedings. The court must assess the competing interests in disclosure, including the sensitivity of the material, the circumstances in which it was disclosed, and the risk that wider disclosure may inhibit future proceedings. Particular caution is required before disagreeing with the Secretary of State’s assessment of the national-security balance.

Disclosure may be refused where the requesting court would receive only an incomplete factual foundation, especially where closed material and oral evidence cannot be disclosed. A dated medical report may also be refused where the issue is presently irrelevant and an updated report would be more useful.

The London Borough of Waltham Forest sought disclosure into care and supervision proceedings concerning the children of IM of documents generated in proceedings under the Terrorism Prevention and Investigation Measures Act 2011. The requested material included parts of the open judgment, statements by the Secretary of State and IM, a former wife’s statement, a psychiatric report, and a confidential annex.

The disclosure application was opposed in substantial part by the Secretary of State and IM. The central questions were whether the court should release sensitive open material, whether the family court should decide what evidence it required, and whether disclosure of the psychiatric report was justified.

1. Disposition. Disclosure was granted for the unredacted paragraphs of the open judgment specifically concerning IM, the statement of IM’s former wife, and the confidential annex. Disclosure of the Secretary of State’s open statements, IM’s statements, and Dr Naguib’s psychiatric report was refused. There was no order as to costs.
2. The court rejected the argument that the disclosure application was too late or that the family court should determine what evidence it wished to receive. A family judge is ordinarily reliant on the parties to adduce relevant and admissible evidence.
3. The Secretary of State’s decision whether to deploy open inculpatory or exculpatory material involves a difficult balance. The fact that material was disclosed and used in a public TPIM hearing does not establish that it should later be disclosed to a further group of people. The court should be very cautious before disagreeing with the Secretary of State’s assessment of the proper balance in matters of national security.
4. Disclosure was refused because the family court would not receive the whole factual foundation of the TPIM decision. It would not receive the closed material and would learn only indirectly about the oral evidence. The existing findings remained valid unless and until overturned, but the pending appeal created a further possibility that disclosure would not provide a reliable foundation.
5. The statements filed by IM were responsive to the Secretary of State’s case. The objections to disclosure of the Secretary of State’s material therefore applied indirectly to IM’s statements. The substantial redaction burden was not independently sufficient, but reinforced the conclusion that disclosure should not be ordered where the substantive grounds were absent.
6. The psychiatric report was nearly two years old and IM’s mental state was not material to the issue then before the family court. A later application could be made if circumstances changed and the report became relevant.

First-instance disclosure application in related family proceedings. The judgment records that permission to appeal the earlier TPIM judgment remained outstanding in the Court of Appeal.