R Saifullah Gharab Yar v Secretary of State for Defence
| Jurisdiction | England & Wales |
| Judge | Mr Justice Swift |
| Judgment Date | 30 November 2021 |
| Neutral Citation | [2021] EWHC 3219 (Admin) |
| Docket Number | Case No: CO/4200/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 3219 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Swift
Case No: CO/4200/2019
and
Richard Hermer QC (instructed by Leigh Day) for Claimant (written submissions only)
Steven Gray and John Bethell (instructed by the Government Legal Department) for the Defendant
Luke Browne (instructed by BBC Litigation Department) for the Applicant
Hearing date: 11 November 2021
Approved Judgment
A. Introduction
By an Application Notice dated 18 August 2021 the British Broadcasting Corporation (“the BBC”) applies to obtain copies of three witnesses statements filed by the Secretary of State for Defence in proceedings between him and Saifullah Ghareb Yar.
Mr Saifullah's claim arises from events that took place in February 2011 when four members of his family were killed by British armed forces operating as part of the International Security Assistance Force in Afghanistan. Mr Saifullah's claim, brought by way of application for judicial review under CPR Part 54, is that those deaths should have been the subject of investigation by reason of article 2 of the European Convention on Human Rights (“the ECHR”), and that no sufficient investigation was undertaken. The Secretary of State contends both that the events that took place in February 2011 were outside the scope of the Convention ratione loci, and that, in any event, an investigation that did take place was sufficient to discharge any obligation that did arise under ECHR article 2.
The BBC's application is that the three statements requested should be provided either pursuant to CPR 5.4C(2) which is the court's power to order copies of documents be provided to non-parties from the court record, or by an order in exercise of the court's inherent jurisdiction requiring copies of the statements be provided to the BBC. The Secretary of State does not oppose the BBC's application so far as it concerns a witness statement made by Ben Sanders dated 18 September 2020; he has agreed to provide a copy of the statement to the BBC and no order of the court is required. The Secretary of State opposes the BBC's application for copies of the other two statements: (a) of Colonel Robert Morris dated 6 November 2020; and (b) and of Sir Jonathan Murphy, also dated 6 November 2020. Those statements were served pursuant to an Order sealed on 23 July 2020 requiring the Secretary of State to file open evidence in response to Mr Saifullah's claim.
B. Decision
(1) The position, in principle
So far as concerns the high-level principles applicable to this application it is not necessary to look further than the decision of the Court of Appeal in R(Guardian News and Media Ltd) v City of Westminster Magistrate's Court [2013] QB 618, and the decision of the Supreme Court in Dring v Cape Intermediate Holdings Ltd [2020] AC 629. The court's power to require documents used for the purposes of litigation to be provided to non-parties, whether by virtue of an inherent jurisdiction (i.e., at common law) or as regulated by provisions in the CPR, is an expression of what is commonly referred to as the open justice principle. Open justice is the means by which public confidence in the integrity of the judicial process is maintained. In his judgment in Guardian News and Media Toulson LJ described the function of the principle in this way:
“1. … open justice lets in the light and allows the public to scrutinise the workings of the law, for better or worse…
2. … it is not only the individual judge who is open to scrutiny but the process of justice…”
and at paragraph 79 he said this:
“The purpose [of the open justice principle] is not simply to deter impropriety or sloppiness by the judge hearing the case. It is wider. It is to enable the public to understand and scrutinise the justice system of which the courts are the administrators.”
In her judgment in Dring, Baroness Hale said this:
“42. The principal purposes of the open justice principle are two-fold and there may well be others. The first is to enable public scrutiny of the way in which courts decide cases – to hold the judges to account for the decisions they make and to enable the public to have confidence that they are doing their job properly …
43. But the second goes beyond the policing of individual courts and judges. It is to enable the public to understand how the justice system works and why decisions are taken. For this they have to be in a position to understand the issues and the evidence educed in support of the parties' cases.”
In his submissions for the BBC in support of this application, Mr Browne placed emphasis on Lady Hale's acceptance that the open justice principle may have purposes in addition to the two she described. He submitted that another relevant purpose of the open justice principle was to make information available for “proper” or “serious” journalistic activity. He suggested that the judgment of Calver J in Goodley v The Hut Group [2021] EWHC 1193 (Comm) was authority for this proposition.
I think this submission goes too far. The open justice principle does not need to be over-complicated. The point of importance, the foundation of the judgments in both the Guardian News and Media case and the Dring case, is that courts should ordinarily work in public. In her judgment in Dring, Baroness Hale's identification of the “principal purposes” of the open justice principle was simply for the purposes of exposition. Her “principal purposes” are not and should not be approached as if they are mutually exclusive. Public understanding of the justice system and how it works is the premise for public scrutiny of the judicial system. Both go to explain why, absent special circumstances, the court's work should be carried out in public, and it would be artificial to try to separate one from the other (see and compare the point made by Toulson LJ at paragraph 77 of his judgment in Guardian News and Media). Similarly, attempts to create a list of additional “principal purposes” of the open justice principle will create more heat than light, and may result only in successive exercises in special pleading. For example, the BBC's submission in this case does not identify any additional further purpose that the open justice principle serves, rather, it merely elides one possible consequence of open justice – the opportunity for journalistic endeavour – with the principle itself.
Historically, court procedures that were essentially oral were sufficient to give effect to the public interest that the open justice principle protects: evidence and argument was presented orally, and judgments were delivered in the same way. Public hearings permitted the public to observe this process and report on it to others, including by journalistic reporting. The move from an entirely (or largely) oral process to one in which, while hearings remain the means by which issues are decided, writing and documents are the mainstays of how hearings are conducted, renders hearings less intelligible unless the public has access to the documents used. This pointed the Court of Appeal in Guardian News and Media to the following conclusion, per Toulson LJ at paragraphs 83 and 85.
“83. The courts have recognised that the practice of receiving evidence without it being read in open court potentially has the side effect of making the proceedings less intelligible to the press and the public. This calls for counter measures. In SmithKline Beecham Biologicals SA v Connaught Laboratories Inc Lord Bingham referred to the need to give appropriate weight both to efficiency and to openness of justice as the court's practice develops. He observed that public access to documents referred to in open court might be necessary. In my view the time has come for the courts to acknowledge that in some cases it is indeed necessary. It is true that there are possible alternative measures. A court may require a document to be read in open court, but it is not desirable that a court should have to take this course simply to achieve the purpose of open justice. A court may also declare that a document is to be treated as if read in open court, but that is merely a formal device for the exercise of a power to allow access to the document. I do not see why the use of such a formula should be required. It may have the advantage of ensuring that other parties have an opportunity to comment, but that can equally be achieved if, in a case such as the present, the applicant is required to notify the parties to the litigation of the application.
…
85. In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle …”
This statement of the general position was accepted by the Supreme Court in Dring: per Baroness Hale at paragraph 44.
In the premises, when all other matters are equal, requests by non-parties for copies of documents that have been placed before a judge or referred to in proceedings in some material way in open court ought to be allowed. However, the specific circumstances of each application must be carefully considered to determine whether the default position should be reflected in the final order on the application. Toulson LJ's “default position” is just that, no less but no more.
As to which specific circumstances may be material, both Guardian News and Media and Dring are authority for the proposition that the reasons for the request could be relevant to whether the court's final decision on the application corresponds to the “default...
To continue reading
Request your trial
-
R the Duke of Sussex v Secretary of State for the Home Department
...to statements of case, is one means to this end. Both parties referred me to my judgment in R(Yar) v Secretary of State for Defence [2021] EWHC 3219 (Admin). In that case, taking account of the leading authorities ( R(Guardian News and Media Ltd) v City of Westminster Magistrates' Court [......