Public Interest Immunity Certificate by Permanent Under-Secretary Valid

The parents of Harry Dunn unsuccessfully challenged a claim for public interest immunity (PII) in a judgment handed down two days before the rolled-up hearing due to take place on Wednesday 11 November 2020: The Queen (on the application of Charlotte Charles and Tim Dunn) v The Secretary of State for Foreign and Commonwealth Affairs and Chief Constable of Northamptonshire Police (Interested Party) [2020] EW 2995 (QB).

The Claimants now pursued three grounds.  In summary:

(1) they challenged the Secretary of State’s determination that at the time of Harry’s death AS enjoyed diplomatic immunity and specifically submitted that there was an error in the Secretary of State’s interpretation of the Exchange Notes.

(2) They alleged that he unlawfully confirmed and/or advised that AS and JS had immunity from criminal jurisdiction and/or obstructed a criminal investigation.

(3) In consequence he breached Article 2 of the ECHR.

The claim for PII was made by the Permanent Under-Secretary of State (PUS) and Head of the Diplomatic Service, Foreign and Commonwealth Office under a PII Certificate dated 9 July 2020.  It concerned specific passages within Ministerial Submissions dated 23 May 1995, 3 July 2001 and 26 July 2006 respectively.

The basis of the PII application was that there was a real risk that disclosure of those passages would cause serious harm to an important public interest, namely the United Kingdom’s national security.

In summary, the governing legal principles were:

• Claiming PII was a duty rather than the exercise of a discretion on the part of the decision-maker. See R  v Chief Constable of West Midlands Police (ex parte Wiley) [1995] AC 274 at 295 G-H.
• A person in possession of a document subject to PII was not entitled to disclose it at will, but had a duty to protect the public interest if necessary by an application to the Court. See Rawlinson & Hunter Trustees SA and others v Director of the Serious Fraud Office (No 2) [2015] 1 WLR 797.
• The approach to making a claim for PII was described by the Court of Appeal (Lord Neuberger) in Al Rawi v Security Service [2010] 3 WLR 1069:
  • “First the relevant minister (or his lawyers) must decide whether the documentary material in question was relevant to the proceedings in question i.e. that the material should, in the absence of PII considerations, be disclosed in the normal way.  Secondly, the minister must consider whether there was a real risk that it would harm the national interest if the material was placed in the public domain.  The third step was for the minister to balance the public interests for and against disclosure.  If the decision were that the balance came down against disclosure, then the minister stated, in a PII certificate that it was in the public interest that the material be withheld.”

• In regard particularly to the second question, consideration should be given to whether any damage to the public interest through disclosure could be prevented by others means, for example, by disclosing a part of the document on a restricted basis: R v Chief Constable of West Midlands [1995] 1 AC 274 at 306-7.
• On any claim for PII it was for the Court to determine whether it should be upheld, and in particular whether the balance of the public interests (the so-called Wiley balance) lay against disclosure. See Lord Simon in R v Lewes Justices, ex parte Secretary of State for the Home Department [1973] AC 388, 407.

Upholding the claim, the Divisional Court (Flaux LJ and Saini J) rejected the Claimant’s submission that a PII certificate issued by a senior official, here the PUS and Head of the Diplomatic Service had less force than a Certificate issued by a Minister.

A claim for PII in relation to such documents would usually be considered by an appropriate senior official.  That was entirely unobjectionable and had no impact on the force of the matters stated in the certificate.

The Claimants were wrong to argue that because there were inevitable constraints as to what could be said openly about the basis of the national security concerns underlying the PII claim in the PII Certificate, that the Certificate should be accorded little or no weight.

As to the passage of time since the 1995 and 2001 Ministerial Submissions, the Court accepted that assessments of the harm which would be caused by disclosure of the sensitive text had been made by reference to the risk of harm today.

The Court’s own consideration of the sensitive text led it to the conclusion that it was not, as had been submitted by the Claimant, of central relevance.

Given its nature, it would not materially impair the Court’s ability to review the legality of the Secretary of State’s decisions or the ability of the Claimants to pursue any of their three grounds of Review.

The focus of the claim in Ground 1 (which was the only potentially relevant ground for present purposes) was the interpretation of the Exchange of Notes, in their international law context, and the sensitive text did not concern that issue or assist in interpretation.