Charles & Anor, R (On the Application Of) v Northamptonshire Police (Public Interest Immunity) (Rev 1)

A claim for public interest immunity is a duty where the claim is well founded, not a discretionary privilege. The court must independently decide whether disclosure should be withheld by balancing the public interest in protecting the relevant interest against the public interest in the administration of justice. The decision-maker should consider whether the risk can be addressed by partial disclosure, a gist, or restricted disclosure. A certificate issued by an appropriately senior official is not entitled to less weight merely because it was not signed by a Minister. Where national security is relied upon, the court may consider a sensitive schedule in assessing the claimed harm. The claim should be upheld where nondisclosure does not materially impair the court’s review or the claimant’s ability to advance the pleaded grounds.

The claimants, the parents of Harry Dunn, challenged the Secretary of State’s decisions concerning diplomatic immunity and related issues arising from his death. The Secretary of State applied under CPR 31.19(1) to withhold passages from three Ministerial Submissions on national security grounds. The application followed a case management judgment concerning the substantive judicial review: [2020] EWHC 1620 (Admin). The issue was whether the claim for public interest immunity should be determined on the papers and whether the balance of public interests justified withholding the sensitive text.

1. The application was granted. The court determined the public interest immunity application on the papers and upheld the claim in respect of the specified passages from the three Ministerial Submissions.
2. Public interest immunity is a duty rather than a discretionary privilege where the claim is well founded. The court adopted the principles in R v Chief Constable of West Midlands Police (ex parte Wiley) [1995] 1 AC 274, including the need to consider whether the risk could be addressed by partial disclosure or disclosure on a restricted basis. The court had to conduct its own assessment of the balance between protecting the relevant public interest and ensuring the administration of justice had access to relevant material.
3. The court rejected the submission that a certificate signed by the Permanent Under-Secretary and Head of the Diplomatic Service carried less force than one signed by a Minister. Senior officials may properly make claims concerning documents produced under a previous administration. The certificate was to be considered alongside the sensitive schedule, and the court independently assessed both materials.
4. The relevant risk was the harm that disclosure would cause at the present time, notwithstanding the age of the documents. Having examined the sensitive text, the court concluded that it was not centrally relevant to the judicial review. Nondisclosure would not materially impair either the court’s ability to review the Secretary of State’s decisions or the claimants’ ability to pursue their three remaining grounds.
5. Ground 1 principally concerned the interpretation of the Exchange of Notes in its international-law context. The sensitive text did not concern that issue and would not assist its interpretation. The court therefore upheld the claim for public interest immunity. It considered that appointing a Special Advocate was unnecessary in the circumstances.

The judgment itself records that the substantive judicial review had previously been addressed at a case management stage in [2020] EWHC 1620 (Admin). This judgment determined the Secretary of State’s separate public interest immunity application.