AIG, R (On the Application Of) v HM Courts & Tribunal Service & Anor

Public interest immunity requires a fact-specific balance between the harm disclosure would cause to the public interest and the harm non-disclosure would cause to the administration of justice. The court must scrutinise the claim independently. In a national security case, it must assess whether disclosure presents a real and substantial risk of harm, having regard to the nature and significance of the information and the relevant circumstances of the claimant. The fact that closed material may remain available to the court under R (Haralambous) v St Albans Crown Court does not create a generally applicable requirement for stronger evidence or a higher standard of cogency. The Wiley balance remains case-specific. Subsequent events do not necessarily establish that disclosure would cause less harm, and a gist should not be provided where it would itself damage the public interest.

The claimant brought judicial review proceedings challenging the issue of a search warrant in respect of his home. He sought disclosure of all material placed before the issuing judge, including a confidential document described as a “form of words”. The Commissioner of Police of the Metropolis applied for permission to withhold that document on public interest immunity grounds, principally national security.

The court considered the effect of R (Haralambous) v St Albans Crown Court, under which material withheld from the claimant may nevertheless remain available to the court when determining the substantive judicial review. The central issue was whether the public interest in withholding the remaining material outweighed the interests of justice in disclosure.

1. Applicable principles. The court adopted the approach described by Lord Templeman in R v Chief Constable of West Midlands Police, ex parte Wiley: relevant and material material should be disclosed unless confidentiality and the risk of harm to the public interest outweigh the harm to the interests of justice caused by non-disclosure. The court must decide the issue itself; a decision by the document-holder is not conclusive.
2. National security assessment. The court had to be satisfied that disclosure created a real and substantial risk to national security. The assessment required close attention to the nature of the information, the explanation of its significance, and the experience and expertise of those supporting the claim. Sensitivity had to be assessed in the specific circumstances, including the claimant’s background, employment and ordinary access to information.
3. Effect of closed material procedures. The court rejected the suggestion in Competition Markets Authority v Concordia International RX (UK) Ltd that the PII case necessarily required a higher standard of cogency because the material might remain before the court under R (Haralambous) v St Albans Crown Court. The alternatives identified in Haralambous both depart from ordinary adversarial justice, and neither produces a generic or reliably measurable additional harm. The Wiley balance must be conducted case by case. The court agreed with the approach in R (Jordan) v the Chief Constable of Merseyside Police.
4. Application and order. The court accepted that disclosure of the remaining “form of words” would harm the public interest and that no safe gist could be provided. That harm clearly outweighed the damage to the administration of justice, notwithstanding the importance of the proceedings to the claimant. The Commissioner’s application was granted, save for further information already disclosed in the letter of 3 February 2021.

First-instance judicial review proceedings. No prior decision or appeal is stated in the judgment.