CC, R (on the application of) v Secretary of State for Defence

Under CPR 39.2, hearings are subject to a strong presumption of openness. A private hearing may be ordered only where necessary to secure the proper administration of justice, and only to the extent required. The court must consider freedom of expression and less intrusive safeguards, including anonymisation, a partly open hearing, or a partly open judgment. Where sensitive national-security material makes even a limited open hearing vulnerable to inadvertent disclosure, and the public interest served by openness would be slight, the whole hearing may properly be conducted in private. Case-management convenience cannot dilute the open-justice principle. A subsequent open judgment may provide an important alternative means of public scrutiny.

The Secretary of State for Defence applied for the substantive judicial review hearing to be held in private under CPR 39.2. The claimant, a former UK Special Forces member, challenged the refusal of express prior authority in writing to publish a book about his involvement in responding to a terrorist attack. The defendant relied on the risk that public discussion would disclose sensitive material, damage national security, and undermine the policy of neither confirming nor denying UK Special Forces activities.

The application concerned whether any part of the hearing could safely and usefully be conducted in public, having regard to open justice, freedom of expression, national security, confidentiality, and less intrusive alternatives.

1. Application granted. The substantive judicial review hearing was ordered to be held entirely in private under CPR 39.2(3)(g), although paragraphs (a), (b) and (c) were also relevant.
2. There is a strong presumption that hearings are public. The burden rests on the party seeking privacy to establish that exclusion of the public is necessary to secure the proper administration of justice. The court must consider affected freedom of expression under CPR 39.2(2) and Article 10 of the ECHR.
3. Privacy must go no further than necessary. Possible safeguards include anonymisation, a partly open and partly closed hearing, and publication of judgments in open and closed forms. Agreement between the parties is not determinative.
4. Public discussion risked disclosing material which would defeat the object of the proceedings, expose national-security information, and compromise the defendant’s neither-confirm-nor-deny policy. The difficulty of drawing a safe boundary and the real risk of inadvertent disclosure outweighed the limited transparency benefit of opening only general or legal matters. A subsequent open judgment could protect open justice substantially.
5. The time required to move between open and closed sessions was irrelevant to the CPR 39.2 assessment. The hearing should instead be allotted sufficient time, and the trial judge should keep the arrangements under review. The order was to be published on the Judiciary of England and Wales website.