Public interest immunity certificates

Regina (Al-Sweady and others) v Secretary of State for Defence [2009] EWHC 1667 QB Div CT TLR 3 August

The six claimants alleged murder and ill-treatment by British soldiers at a British base in Southern Iraq. Throughout the proceedings, there had been significant and continuing disclosure failures by the Secretary of State for Defence, including one which was a very grave concern to the court: the Secretary of State has relied on what has transpired to be a partly false public interest immunity certificate and schedule in which it was asserted that it was not in the public interest, or national security grounds, to disclose certain redacted aspects of documents otherwise disclosed to the claimants. Yet it had subsequently become clear that a significant proportion of that redacted material, all of which related to the permissible limits of the techniques of tactical questioning of captured individuals by military interrogators, had previously been disclosed in connection with a court martial. The court’s attention had not been drawn to that until the Secretary of State had supplied a supplemental certificate some weeks after the hearings at which the court had been persuaded that the balance of public interest required non-disclosure. The court should not have been misled into making a number of rulings which had subsequently been shown to have been wholly wrong. There is a very high duty on central government to assist the court with full and accurate explanations of all the facts relevant to the issue which the court has to decide. The system for dealing with public interest immunity claims in the courts of England and Wales depends on the scrupulous accuracy of the whole of the contents of the ministerial certificate in schedule, especially if, as in this case, the schedule dealt with issues of national security. Until such time as the Ministry of Defence has taken steps to ensure that false assertions were never again made in a certificate and schedule, it would, in the court’s view, being incumbent on the courts to approach the content of any such documents with very considerable caution. As the result of the disclosure failures, and the Secretary of State’s consequent concession that there should be a new investigation, the court, having heard evidence and submissions over some 20 court days, ordered a stay on proceedings and made an indemnity costs order for the whole of the proceedings, with an interim order for £1m, in the claimant’s favour. The complete integrity of public interest immunity certificates and the schedules attached to them, signed by ministers of the Crown, was absolutely essential in all cases in which they were put forward. The courts have to be able to have complete confidence in them. Nothing less is acceptable.