THE DUKE OF SUSSEX (R on the application of) v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Restrictions on public access to court documents must represent the minimum necessary derogation from open justice. The court must balance public access to information about litigation against any prejudice to parties, non-parties or identifiable public interests. Security information may justify editing statements of case where disclosure could impair present or future protective arrangements, provided the edited material still enables the public to understand the litigation. Other documents on the court record should generally be released only with permission and on notice to the parties. In judicial review proceedings, the court assesses the legality of the decision-making process rather than determining facts. This may justify excluding irrelevant or duplicative evidence at an early stage.

The claimant brought judicial review proceedings challenging decisions concerning the security arrangements to be made for him in the United Kingdom. This judgment concerned an interlocutory application by both parties regarding confidentiality, public access to court documents, anonymity for a witness and the relevance of evidence. The court was required to determine whether parts of the claimant’s confidential statement and supporting evidence should be edited or withheld, whether a witness should be anonymised, and whether certain evidence was irrelevant or duplicative.

1. Open justice and confidential material. The court accepted that access to court documents serves public confidence and permits scrutiny of the judicial process. Any restriction under Civil Procedure Rules 1998 rule 5.4C must nevertheless be the minimum necessary derogation from that principle. The court must balance the public interest in open justice against prejudice to parties, non-parties or an identifiable public interest. The approach was informed by R(Yar) v Secretary of State for Defence [2021] EWHC 3219 (Admin), R(Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2013] QB 618 and Dring v Cape Intermediate Holdings Ltd [2020] AC 629.
2. Statement of case. The categories of information identified by the parties, including threat assessments, protective security arrangements, vulnerabilities, protection tactics and related personnel information, were prima facie suitable for editing. Disclosure could assist persons seeking to compromise current or future security arrangements. The edited version would nevertheless disclose the issues and essential context of the judicial review. The proposed editing was therefore permitted under rule 5.4C(4)(c), subject to any later application for access to the unedited document.
3. Witness statements and exhibits. The specific power to edit statements of case did not determine the treatment of other court documents. Access to those documents required permission under rule 5.4C(2), with an application under rule 5.4D. Applications for witness statements and exhibits were therefore required to be made on notice. The parties were also ordered not to provide copies to non-parties without permission.
4. Anonymity. The court ordered anonymity for Witness X under rule 39.2(4), considering it necessary for the proper administration of justice and to protect the witness’s interests.
5. Relevance of evidence. In judicial review the court assesses decision legality by reference to public law principles and is not generally a finder of fact. Although a wait-and-see approach may be appropriate, the nature of judicial review and detailed pre-action correspondence made it possible to identify irrelevant material at this stage. Irrelevant and duplicative evidence was excluded. The open justice principle did not require irrelevant material, especially confidential material, to be described in a public judgment.

First-instance judicial review proceedings. The judgment determined an interlocutory confidentiality, anonymity and evidence application; the merits of the underlying judicial review were not decided.