The Public and Commercial Services Union & Anor, R (on the application of) v Secretary of State for the Home Department

In judicial review proceedings, disclosure should be ordered only where it appears necessary to resolve the matter fairly and justly, assessed by reference to the pleaded issues. Where public interest immunity is claimed, the court must determine relevance, the real risk of serious harm from disclosure, and the balance between confidentiality and the fair administration of justice.

A confidentiality ring or other restricted disclosure may provide a proportionate alternative to complete immunity, provided the court has first inspected and considered the material. Any restriction on open justice must be strictly necessary and no wider than required.

Three linked judicial review claims challenged the Secretary of State’s policy for redirecting migrant boats from UK territorial waters towards France. The claimants sought disclosure of unredacted policy documents. The Secretary of State relied on public interest immunity, asserting that disclosure of operational details could assist organised criminal groups and endanger migrants and Border Force personnel.

The court considered whether the redacted passages were necessary for the fair disposal of the claims, whether disclosure created a real risk of serious harm to the public interest, and whether that risk could be mitigated by restricted access and private hearings.

1. Disclosure in judicial review. Disclosure is not ordinarily required unless ordered by the court. An order should be made only where disclosure appears necessary to resolve the matter fairly and justly. The assessment must focus closely on the pleaded grounds of challenge. [2006] UKHL 53; [2007] 1 AC 650.
2. Public interest immunity. The process involves three stages: identifying material relevant to the proceedings; deciding whether disclosure would create a real risk of serious harm to the public interest; and balancing that risk against the public interest in the fair administration of justice. The court is the ultimate decision-maker and may inspect the documents and consider measures short of complete immunity, including redaction, summaries, private hearings and restricted access. [2012] 1 AC 531; [2018] EWHC 3825 (Admin).
3. Restricted disclosure. A confidentiality ring is legally permissible after the court has considered the documents and the immunity claim. The court distinguished cases where material had been disclosed before the PII issue was determined, and cases involving material already held to be immune. [2012] EWHC 3454 (Admin); [2007] UKHL 44; [2018] EWCA Civ 1881.
4. The court accepted that disclosure of some operational details would create a real risk of serious harm. Nevertheless, 16 passages were unnecessary for fair disposal, 11 passages could be disclosed without PII, and 66 passages could be disclosed within a tightly controlled restricted-access arrangement. The court rejected reliance on CPR 39.2(3)(a) and (c), but held that private hearings were necessary under CPR 39.2(3)(g) when the protected material had to be discussed.
5. The PII application was not granted because the material was not made wholly immune from disclosure. The court instead ordered restricted disclosure of the protected material, with safeguards including identified recipients, a penal notice, personal service and controls on use and storage. The redactions in Private Annex 1 remained; the material in Private Annex 2 was to be disclosed subject to interim arrangements; and the material in Private Annex 3 was to be disclosed on restricted terms.

This was a first-instance decision on linked disclosure and public interest immunity applications in judicial review proceedings. The judgment records earlier procedural directions and an earlier expert-evidence judgment, [2022] EWHC 517 (Admin), but no appeal from a lower court.