Reprieve & Ors, R (On the Application Of) v The Prime Minister

Article 6(1) is engaged by judicial review only where the proceedings determine a party’s civil rights or obligations. A public-law challenge to the refusal to establish an inquiry into alleged violations of others’ rights does not, without more, determine the claimants’ civil rights.

Even where article 6 applies, the disclosure required by Secretary of State for the Home Department v AF (No 3) is context-dependent. Its stringent rule is principally concerned with restrictive executive action affecting individual liberty or comparable fundamental interests. Judicial review of a public decision does not automatically require equivalent disclosure.

The claimants sought judicial review of the Prime Minister’s decision not to establish a public inquiry into alleged United Kingdom involvement in the torture, mistreatment and rendition of detainees. They relied on the investigative obligation under article 3 of the Convention and on irrationality. The defendant relied on sensitive material and sought to use a closed material procedure under section 6 of the Justice and Security Act 2013.

At a preliminary hearing, the court considered whether article 6(1) applied and, if so, whether the claimants were entitled to disclosure of the kind required by Secretary of State for the Home Department v AF (No 3).

1. Article 6(1). The claimants’ asserted right to a lawful executive decision concerning the article 3 investigative obligation was a public-law claim. A public-law remedy under the Human Rights Act does not itself create a civil right for article 6 purposes. The proceedings did not determine the claimants’ own article 3 rights. They sought to raise the interests of possible victims who were not parties and could not step into their shoes. Article 6(1) was therefore not engaged (paras [40]–[44]).
2. AF (No 3) disclosure. The disclosure rule in Secretary of State for the Home Department v AF (No 3) did not apply. That rule was rooted in proceedings involving liberty and restrictive executive action against an individual. Any extension required a contextual balancing exercise addressing fair disposal, national security and the particular character of the proceedings (paras [45]–[47]).
3. The defendant had supplied witness statements and documents explaining its case. Judicial review would assess legality on the evidence before the decision-maker, not conduct a merits review or become a vehicle for evidence-gathering. The claimants’ investigative expertise did not make the proposed disclosure necessary (paras [48]–[50]).
4. The court left open whether article 6 may require an intermediate level of disclosure outside AF (No 3). It directed active supervision of the closed-material process under Part 82 of the Civil Procedure Rules, with disclosure kept under review (paras [51]–[53]).