SAIFULLAH GHARAB YAR v SECRETARY OF STATE FOR DEFENCE

Public interest immunity may justify withholding relevant and disclosable material where disclosure would cause serious harm to international relations. The court must consider whether the public interest in non-disclosure is significant and whether any lesser measure would adequately protect it. The prejudice to the opposing party must also be assessed, including whether the material is central to the issues and whether a gist or other disclosure mitigates that prejudice. Where the material is peripheral, the prejudice is insignificant, and lesser protective measures cannot provide sufficient certainty, the application may properly be allowed.

The Secretary of State for Defence applied for public interest immunity in judicial review proceedings concerning an alleged breach of the obligation under article 2 ECHR to investigate the deaths of four Afghan civilians shot by British troops in 2011. The application concerned documents and parts of documents said to contain information whose disclosure would seriously harm international relations, particularly relations with an international organisation. Redacted documents and a gist had been served, and special advocates considered the unredacted material under the existing closed material procedure. The issue was whether the redacted information should be withheld from disclosure.

1. Application granted. The Secretary of State’s application to withhold the redacted information on grounds of public interest immunity was allowed.

2. The court was satisfied that disclosure would engage a significant public interest in protecting international relations and vital future co-operation. The redacted information was relevant and disclosable, but the public interest in excluding it from disclosure justified a high level of protection.

3. The court considered whether measures short of non-disclosure could adequately safeguard the public interest. None could provide sufficient certainty that the protected interest would be fully preserved. Non-disclosure was therefore the appropriate measure.

4. The prejudice to the claimant was insignificant. The redacted information was not central to the claim or the matters in dispute. The claimant’s case concerned the adequacy and scope of an investigation into the deaths, including whether it should have addressed identified systemic issues, whereas the redacted material was peripheral.

5. The prejudice was further mitigated by the gist already served, together with a further version containing a small amount of additional information. The resulting derogation from the ordinary public interest in litigation conducted through disclosure was minor.