England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr. Justice Irwin
[2013] EWHC 1579 (QB)

		Royal Courts of Justice Strand, London, WC2A 2LL
		26 June 2015

Lord Justice Moore-Bick :

1. This is the judgment of the court on the appellant's application for a review of the conditions restricting the publication and use of certain documents brought into being or disclosed in the course of, and for the purposes of, the proceedings relating to the appellant.
2. In order to explain the nature of the application and the reasons for our decision it is necessary to describe briefly the course of events by which those restrictions have been imposed.
3. In November 2005 the appellant and six others were due to stand trial at the Central Criminal Court on an indictment charging them with conspiracy to cause explosions. The trial judge was Sir Michael Astill. At a preliminary hearing on 28^th November 2005 he ordered that part of the trial be conducted in private. At the same time he gave various directions designed to enable those representing the appellant to have access on restricted terms to certain materials of a confidential nature in order to ensure that they had a full and fair opportunity to contest the allegations made against them. His orders were made in the light of a public interest immunity ("PII") certificate made by the Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs dated 20^th October 2005 confirming that it would be not be in the public interest for the relevant material to be disclosed. The handling restrictions for which the order provided had been carefully crafted in order to enable the appellant to have access to as much of the material as possible while preserving its confidentiality.
4. On 13^th January 2006 an appeal against Sir Michael's order was dismissed by the Court of Appeal, Criminal Division in a judgment reported at [2006] 1 WLR 1361.
5. On 23^rd February the judge delivered a ruling on an application by the appellant under sections 76 and 78 of the Police and Criminal Evidence Act 1984 that evidence of certain admissions he had made in the course of a series of interviews by the police be excluded from the trial. The judge dismissed the application. The transcript of his ruling remains confidential, as does the record of the proceedings relating to it.
6. In May 2006 the appellant made an application for the indictment to be stayed on the grounds of abuse of process. The judge also dismissed that application and the record of his ruling and of the relevant part of the proceedings remains confidential.
7. On 30^th April 2007 the appellant and others were convicted of conspiracy to cause explosions. In a written judgment delivered on 23^rd July 2008 the Court of Appeal, Criminal Division dismissed their applications for leave to appeal against conviction. A partially redacted version of the court's judgment was made public; the unredacted version remains confidential.
8. In November 2009 the appellant began the present proceedings seeking to recover damages for personal injuries on the grounds that the respondents were liable for ill-treatment he alleged he had suffered while under detention in Pakistan. For that purpose he wished to make use of documents that had been disclosed or brought into existence in connection with the criminal proceedings. Accordingly, on 3^rd July 2012 Lord Judge L.C.J. sitting both as a judge of the Court of Appeal, Criminal Division and as a judge of the Crown Court ordered that, notwithstanding the order made by Sir Michael Astill at the Central Criminal Court on 28^th November 2005, the appellant and his legal representatives should have made available to them, subject to the handling conditions set out in annexes to the order, copies of certain confidential documents, including Sir Michael's rulings, the unredacted judgment of the Court of Appeal, and certain documents disclosed by the Crown in the course of the criminal proceedings. Disclosure of the documents was expressly made subject to orders being made in the civil proceedings in terms set out in another annex and orders in those terms were subsequently made by Master Leslie and Deputy Master Meacher. The handling restrictions imposed by those orders have been called for convenience the "in camera regime".
9. On 26^th June 2013 Irwin J. struck out the appellant's claim as constituting an abuse of process, but gave him permission to appeal. The appeal was originally listed for hearing on 19^th and 20^th May 2014. On 9^th April 2014 the appellant applied to this court for an order that the in camera regime be reviewed with a view to its being relaxed in whole or in part. The application was heard by Richards L.J. on 9^th April 2014. Having heard argument, including argument from counsel representing various media interests, he considered that it was inappropriate to carry out a fundamental review of the in camera regime at that time, in particular given that the appeal was to be heard a little more than a month later. He therefore ordered that the in camera regime put in place by Deputy Master Meacher's order be continued subject to review by the court at the hearing on 19^th May, if it saw fit.
10. With the hearing of the substantive appeal imminent, and with the possibility of a review of the in camera regime in mind, on 19^th May 2014 the Secretary of State for Foreign and Commonwealth Affairs signed a further PII certificate confirming that in his opinion it was necessary in the public interest for the existing regime to remain in place. He also confirmed that there would be a real risk of serious harm to national security and/or international relations were it to be discharged or varied. The certificate was supported by a confidential schedule, disclosure of which, he confirmed, would give rise to a real risk of serious harm to the public interest.
11. In the event, the appeal against the decision of Irwin J. came on for hearing on 11^th December 2014 before the court as presently constituted. At the outset Mr. O'Connor, supported by representatives of the Press, formally applied for a review of the in camera regime, but sensibly recognised that it would not be possible to conduct such a review and hear the substantive appeal within the limited time available. He therefore accepted that the appeal should proceed without prejudice to his right to pursue the application at a later date.
12. Following the circulation of the court's draft judgment, Mr. O'Connor renewed his application for a review of the in camera regime and asked the court to make directions requiring the respondents to give further information about the basis on which the PII certificate had been made in order to enable him to challenge it effectively. On 22^nd May 2015 we heard argument on the question whether the court should direct a review, as a result of which it became clear that it was Mr. O'Connor's intention to challenge root and branch the confidentiality of much of the material subject to the regime established by Sir Michael Astill in November 2005, as modified by the order of Lord Judge in July 2012.
13. At this stage the only question we have to decide is whether the court should undertake a review of the in camera regime and, if so, whether it should give directions of the kind which Mr. O'Connor seeks. The materials subject to the regime can be described as follows:

(i) the two rulings made by Sir Michael Astill in the course of the criminal proceedings and the transcript of the proceedings relating to them;

(ii) the unredacted judgment of the Court of Appeal, Criminal Division and any transcripts of the hearings in camera relating to it;

(iii) the materials disclosed by the Crown in the course of the criminal proceedings; and

(iv) the skeleton arguments referring to those materials.

All these materials have been made available to the appellant and his legal advisers. The only question which now arises is whether they should be disclosed to the public generally.

14. Basing himself on the various documents disclosed to the appellant under the in camera regime, Mr. O'Connor sought to identify the topics which, he contended, the in camera regime had been designed to ensure remained confidential. He then sought to demonstrate that over the course of time they had all entered the public domain in one way or another and had therefore ceased to be confidential. He also sought to challenge the grounds on which the most recent PII certificate had been made, although, as he himself was the first to recognise, he was hampered in doing so by an almost complete lack of information about the basis of that certificate. Indeed, that was the principal ground of his application for disclosure of information bearing on that question.
15. The argument in favour of reviewing the continuation of the in camera regime is based squarely on the need to respect and implement in practical terms the principle of open justice. We fully recognise the importance of that principle, but there are times when the public interest in open justice is outweighed by the public interest in preserving confidentiality. In the present case we have been provided, in the absence of Mr. O'Connor, with a full explanation of the grounds on which the PII certificate was made in May 2014, which are set out at length in a confidential schedule to the certificate. We were told by Mr. Phillips on instructions that none of the matters to which it refers have since altered in any way; indeed the nature of those grounds suggests strongly that they cannot have done so. We are also satisfied that it would not be in the public interest for us to refer to any of them openly in this judgment; suffice it to say that in our view they speak for themselves. Frustrating though it must be for Mr. O'Connor, who has not had the benefit of seeing that material, we are quite satisfied that it is clear beyond reasonable argument that it would be contrary to the public interest for the existing in camera regime to be relaxed in any respect now or in the foreseeable future.
16. In those circumstances we do not consider that any useful purpose would be served by conducting a full review of the in camera regime and the application is therefore dismissed.