R the Duke of Sussex v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Swift |
| Judgment Date | 24 March 2022 |
| Neutral Citation | [2022] EWHC 682 (Admin) |
| Docket Number | Case No: CO/3224/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 682 (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/3224/2021
Shaheed Fatima QC, Gayatri Sarathy & Marlena Valles (instructed by Schillings International LLP) for the Claimant
Robert Palmer QC & Christopher Knight (instructed by GLD) for the Defendant
Hearing dates: 18 and 25 February 2022
Approved Judgment
A. Introduction
On 20 September 2021 the Duke of Sussex (“the Claimant”) filed a claim for judicial review challenging the legality of decisions taken (in February 2020 and in early 2021) concerning the arrangements to be made for ensuring his security in the United Kingdom. The decisions were taken by a body known as the Executive Committee for the Protection of Royalty and Public Figures. This body is commonly referred to as “RAVEC”, an acronym of its previous title, the Royalty and VIP Committee. RAVEC is the body responsible for deciding the security measures that are made in the United Kingdom for a range of public figures. The Defendant to this claim is the Home Secretary; she is legally responsible for RAVEC's decisions.
This judgment does not consider the merits of that claim. It concerns only the extent to which it is necessary for information relied on in support of the claim to remain confidential as between the parties to the proceedings and the Court. This matter is raised by the parties in an Application Notice filed on 16 February 2022. Put very briefly, some of the information relied on concerns security arrangements put in place either for the Claimant or for other public figures in the United Kingdom. For obvious reasons information on such matters usually remains confidential; if it became generally known the effectiveness of the security measures could be compromised. Set against that, the default position in litigation is that the courts work in public. In these proceedings a balance needs to be struck between legitimate requirements of confidentiality, and the ordinary requirements of open justice. The nature of the matters to be decided at this stage requires that some parts of my reasons can only be set out in the Confidential Annex to this judgment; setting out all my reasons in a public judgment would defeat the purpose of the application the parties have made. Subject to any further order by the court, the Confidential Annex shall be available only to the parties to the proceedings and their legal advisers, and to any judge dealing with any issue in the proceedings.
The claim is made under Part 54 of the Civil Procedure Rules (“the CPR”). Part 54 claims are commenced by filing a Claim Form at court, and the Claim Form must either contain a statement of the facts relied on and the legal grounds for the challenge, or that information must be set out in documents filed with the Claim Form: see Practice Direction 54A. Usually, this information is contained in a single document filed with the Claim Form and referred to as the Statement of Facts and Grounds.
In this case, the Claimant filed two documents with the Claim Form: (a) an Open Summary of the Statement of Facts and Grounds (“the Open Summary”, a 3-page document); and (b) a Confidential Statement of Facts and Grounds the (“the Confidential Statement” running to 33 pages). When the claim was filed the Claimant also made an application for an order in the following terms, seeking to limit the extent to which documents filed at court might be made available to persons who are not parties to the litigation:
“1. Upon the Judge being satisfied that it is strictly necessary:
1.1 No copies of the Confidential Material will be provided to any person other than the Defendant without further order of the Court;
1.2 Any person other than the Defendant seeking access to, or copies of, the Confidential Material must make an application to the Court, giving proper notice (of no less than 7 days) to the Claimant and the Defendant.
2. Any application made by any person other than the Defendant to obtain a copy of any other document from the Court file must be made on proper notice (of no less than 7 days) to the Claimant and the Defendant.
3. The Claimant and Defendant shall refer to the person whose name is set out in the Confidential Schedule by the letter “X” in any and all open hearings and any and all publicly accessible documents. Until further order, the publication of the name of “X”, or any particulars or details which may lead to his identification in connection with these proceedings, is prohibited.
4. The parties (and their legal advisors) shall take all steps to preserve the confidentiality of the Confidential Material.”
The “Confidential Material” referred to comprised the Confidential Statement, a witness statement made by the Claimant and the exhibits to that statement, a witness statement made by Tim Robinson OBE (a partner in the firm of solicitors instructed by the Claimant) and the exhibits to that statement, a witness statement by the person referred to as X and the exhibits to that statement, and submissions made in support of the application. The application explained that disclosure of the Confidential Material, which included information about security arrangements, would prejudice the rights of the Claimant, his family, and others under any/all of ECHR articles 2, 3 and 8.
The CPR makes general provision for public access to court documents. The general position for all proceedings, not just those governed by Part 54, is that once a defendant's Acknowledgement of Service or Defence has been filed, any person may ask for and obtain copies of the parties' statements of case: see CPR 5.4C(1) and (3). However, the rules also permit the court to vary that position. CPR 5.4C(4) states:
“(4) The court may, on the application of a party or of any person identified in a statement of case –
(a) order that a non-party may not obtain a copy of a statement of case under paragraph (1);
(b) restrict the persons or classes of persons who may obtain a copy of a statement of case;
(c) order that persons or classes of persons may only obtain a copy of statement of case if it is edited in accordance with the directions of the court; or
(d) makes such other order as it thinks fit.”
This power was the premise of the Claimant's application to the extent that he invited the court to order that any person not a party to the proceedings who applied under CPR 5.4C to obtain a copy of the Claimant's Statement of Case, should, in the first instance, be provided with a copy of the Open Summary and not a copy of the Confidential Statement. Any application to obtain a copy of the Confidential Statement would need to be made on notice to the parties to the claim. This was with a view to ensuring that the Claimant's challenge to the legality of the arrangements in place for his security could be determined without exposing information that might impair the security provided for him and for other significant public figures.
The court will, when good reason is shown, exercise its power under CPR 5.4C(4) to restrict access to documents held on the court file. However, the court must be satisfied that any restriction imposed represents the minimum necessary derogation from the default position. When called on to exercise the power under CPR 5.4C(4), the court must strike a balance between the public interest in open justice – that the court should do its business in public and members of the public should have access to basic information about claims brought to court – and any particular interests of the parties or others that might weigh in favour of more limited access to information.
Having considered the claim and the documents filed in support of the Application Notice, I asked the Claimant to file a schedule listing the specific parts of the Confidential Statement that he contended would give rise to prejudice, if made public. That schedule was filed on 27 October 2021. From that time the parties have liaised with a view to establishing a common approach to which information needs to be subject to some form of protection, and why. That process extended over a number of months.
The outcome was a new application, this time made by both parties, in an Application Notice dated 16 February 2022. This is the application now before me. The order the parties now seek is as follows:
“1. The redactions in the Redacted Material (as defined in Section 10 below) are allowed.
2. No non-party shall obtain a copy of the Confidential Material (as defined in Section 10 below) from the court's records.
3. A non-party seeking access to documents from the Court's records shall only be permitted to obtain a copy of the Redacted Material.
4. The parties shall refer to the persons identified in the Confidential Schedule to the Order by the ciphers set out therein in any and all open hearings and any and all publicly accessible documents. Until further order, the publication of the names of the persons identified in the Confidential Schedule, or any particulars or details which may lead to their identification in connection with these proceedings, is prohibited.
5. Any application by any non-party to vary the terms of paragraphs 2 to 4 of this Order shall be made on no less than seven days' notice to the parties.
6. The Defendant shall file an Acknowledgement of Service, Summary Grounds of Resistance and any accompanying application for an equivalent Order in respect of those summary grounds by 4:30pm on 4 March 2022 …”
The material part of section 10 of the Application Notice further explains the situation as follows:
“This application has been prepared by the Claimant but is filed on a...
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