SAIFULLAH GHARAB YAR v SECRETARY OF STATE FOR DEFENCE

The open justice principle concerns the public’s ability to understand and scrutinise court proceedings. A journalist’s purpose does not create an additional free-standing basis for disclosure.

Witness statements prepared for a substantive hearing should generally not be disclosed to non-parties in advance. Filing a statement, or using it in passing or for an interlocutory disclosure application, does not itself engage the principle. The relevant question is whether the court has used the statement to determine issues in the case.

The claimant brought judicial review proceedings concerning an alleged obligation under article 2 of the European Convention on Human Rights to investigate deaths caused by British forces in Afghanistan.

The BBC applied under CPR 5.4C(2), or the court’s inherent jurisdiction, for copies of two witness statements filed by the Secretary of State. The statements had been referred to at interlocutory hearings, but the substantive judicial review hearing had not taken place. The issue was whether open justice required their advance disclosure.

1. Application refused. The BBC was not entitled at that stage to copies of the witness statements.
2. The governing principles were stated in R (Guardian News and Media Ltd) v City of Westminster Magistrate’s Court [2013] QB 618 and Dring v Cape Intermediate Holdings Ltd [2020] AC 629. Courts ordinarily work in public so that the public can scrutinise and understand the justice system. Access to documents referred to materially in open court is ordinarily permitted, subject to the circumstances and any prejudice.
3. Journalistic purpose is not an additional free-standing purpose of open justice. A journalist’s status may be relevant to prejudice and legitimate interests, but does not itself require disclosure.
4. Filing witness statements in judicial review proceedings did not by itself engage the open justice principle. The differences between CPR Part 54 proceedings and ordinary civil trials did not alter that conclusion. The principle becomes relevant for this purpose when the court considers evidence in deciding issues.
5. References to the statements at earlier hearings were passing or served only to identify the scope of existing evidence for a specific-disclosure application. They were not used to determine the truth or sufficiency of the substantive case.
6. Disclosure might become appropriate after the substantive hearing. Before then, the open justice principle did not provide a right to journalistic preview of evidence prepared for that hearing.