The King on the application of CC v Secretary of State for Defence
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lane |
| Judgment Date | 08 June 2023 |
| Neutral Citation | [2023] EWHC 1804 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | No. CO/3889/2022 |
[2023] EWHC 1804 (Admin)
Mr Justice Lane
No. CO/3889/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London
WC2A 2LL
Mr T Johnston (instructed by Harrison Clark Rickerbys) appeared on behalf of the claimant.
Mr O Sanders KC and Mr E Sheppard (instructed by the Government Legal Department) appeared on behalf of the defendant.
This is an application by the defendant, the Secretary of State for Defence, that this judicial review claim, listed to be heard substantively next week, should be heard in private pursuant to CPR 39.2. That provision provides as follows:
“General rule – hearing to be in public
39.2
(1) The general rule is that a hearing is to be in public. A hearing may not be held in private, irrespective of the parties' consent, unless and to the extent that the court decides that it must be held in private, applying the provisions of paragraph (3).
(2) In deciding whether to hold a hearing in private, the court must consider any duty to protect or have regard to a right to freedom of expression which may be affected.
(2A) The court shall take reasonable steps to ensure that all hearings are of an open and public character, save when a hearing is held in private.
(3) A hearing, or any part of it, must be held in private if, and only to the extent that, the court is satisfied of one or more of the matters set out in sub-paragraphs (a) to (g) and that it is necessary to sit in private to secure the proper administration of justice –
(a) publicity would defeat the object of the hearing;
(b) it involves matters relating to national security;
(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;
(d) a private hearing is necessary to protect the interests of any child or protected party;
(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;
(f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person's estate; or
(g) the court for any other reason considers this to be necessary to secure the proper administration of justice.
(4) The court must order that the identity of any person shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that person.
(5) Unless and to the extent that the court otherwise directs, where the court acts under paragraph ( 3) or (4), a copy of the court's order shall be published on the website of the Judiciary of England and Wales (which may be found at www.judiciary.uk). Any person who is not a party to the proceedings may apply to attend the hearing and make submissions, or apply to set aside or vary the order.”
Before going into the facts of the matter, I consider it necessary briefly to outline the relevant legal principles. As CPR 39.2 makes plain, there is a strong presumption in favour of hearings being in public, to the extent that that is possible compatibly with the matters articulated in 39.2(3), as to which it is common ground that sub-paragraphs (a), (b), (c) and (g) are relevant in the present case.
In Cape Intermediate Holdings v Dring [2019] UKSC 38, Lady Hale explained that the principal purposes of the open justice principle are two-fold. The first is to enable public scrutiny of the way in which courts decide cases, holding judges to account for their decisions, and to enable the public to have confidence that they are doing their job. The second purpose is to enable the public to understand how the justice system works and why judicial decisions are taken.
Nevertheless, it is established that there may be circumstances in which the interests of justice require a private hearing. For that the leading authority remains Scott v Scott [1913] AC 417. There, Lord Haldane explained that the principle of open justice is subject to exceptions which underscore the yet more fundamental principle that the chief object of the courts of justice must be to secure that justice is done. As a result, the court will not order a private hearing unless it is satisfied that it is necessary to exclude the public from some or all of the hearing and the burden is on the party seeking the private hearing. The nature of that burden is to show that the ordinary rule must be superseded by the paramount consideration of ensuring that justice is done.
I also bear in mind that Article 10 of the ECHR, which provides that the exercise of freedom of expression may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security.
As a result, the court will only order a private hearing if it concludes that there is no other less intrusive alternative by which the relevant interests may be protected. That may be by means of anonymisation, the holding of a partly open and partly closed hearing and by the publication of a partly open and partly closed judgment.
Having articulated the relevant legal principles, it is necessary to explain the factual background to the application. The claimant is a former member of the UK Special Forces (“UKSF”). He challenges the defendant's decision to refuse express prior authority in writing (“EPAW”) for the publication of a book, which the claimant has written. The defendant refused EPAW because he assesses that publication would damage national security. The central issue, therefore, is whether the defendant's refusal was justified under Article 10(2) of the ECHR; that is to say, whether in all the circumstances the refusal was a proportionate interference with the right expressed in that Article.
The evidence and submissions of both parties focus on the contents of the book and the lawfulness of the defendant's national security assessment. The defendant's case in advancing this application is that dealing with these matters in public would reveal those contents and cause or compound the effects of publication. That would defeat...
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The King on the application of Christian Craighead v The Secretary of State for Defence
...of the Secretary of State, and for the reasons given in his ex tempore judgment ( R (CC) v Secretary of State for Defence [2023] EWHC 1804 (Admin)), Lane J made an order that securing the proper administration of justice required the substantive hearing of the claim to be held in private. ......