Jordan, R (On the Application Of) v Merseyside Police & Anor

In a judicial review challenging a search warrant, a claim for public interest immunity must be determined before considering whether closed material may be used in a closed material procedure. The court must address relevance, the risk of harm to the public interest from disclosure, and the balance between that harm and the damage to the administration of justice caused by non-disclosure. A closed material procedure does not remove that damage, but does not automatically require stronger evidence for the PII claim. The balance remains fact-specific.

Police obtained a warrant under the Misuse of Drugs Act 1971 to search the claimant’s home. The claimant sought judicial review, alleging that the warrant application exaggerated an earlier search and omitted material information about that search and later police visits.

The Chief Constable claimed PII over redacted parts of the warrant application. The court determined the PII claim and gave directions for the subsequent substantive judicial review hearing.

1. The court upheld the PII claim, subject to disclosure of limited further information about one intelligence report. Material protected by PII is inadmissible for all purposes, unlike material withheld in a closed material procedure, which the court may consider when deciding the substantive claim.
2. Before a closed material procedure can arise, the court must determine the three questions identified in R v Chief Constable of West Midlands Police ex p Wiley [1995] 1 AC 274: relevance, harm to the public interest from disclosure, and the balance between that harm and the damage to the administration of justice from non-disclosure. Material which could arguably support a pleaded or potential ground of challenge is relevant, although not every item before the warrant-issuing authority is necessarily relevant.
3. The court must make its own fact-specific assessment of both forms of harm. A closed material procedure remains a significant derogation from procedural fairness. Its availability does not eliminate the damage caused by the absence of adversarial scrutiny, but does not automatically require a higher standard of cogency for the PII claim. The court respectfully disagreed with that aspect of Competition and Markets Authority v Concordia International RX (UK) Ltd [2018] EWHC 3448 (Ch).
4. On the facts, the risk of serious public-interest damage from disclosure outweighed the resulting damage to the administration of justice. The claimant could present the principal challenge using open material, while the remaining complaint could be tested in the closed procedure.
5. Where PII is upheld, the court should ordinarily give directions concerning disclosure, any special advocate, listing, the order of open and closed hearings, the public authority’s duty to identify points assisting the claimant, and the preparation of open and closed judgments.

First-instance determination in the High Court (Administrative Court). The substantive judicial review hearing was directed to proceed subsequently.