The Queen (on the application of Charlotte Charles and Tim Dunn) v The Secretary of State for Foreign and Commonwealth Affairs
| Jurisdiction | England & Wales |
| Judge | Lord Justice Flaux,Mr Justice Saini |
| Judgment Date | 09 November 2020 |
| Neutral Citation | [2020] EWHC 3010 (Admin) |
| Docket Number | Case No: CO/4688/2019 |
| Date | 09 November 2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 3010 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Flaux
and
Mr Justice Saini
Case No: CO/4688/2019
and
Geoffrey Robertson QC and Adam Wagner (instructed by Howard Kennedy LLP) for the Claimants
Sir James Eadie QC, Ben Watson, Jason Pobjoy and George Molyneaux (instructed by Government Legal Department) for the Defendant
Jason Beer QC instructed by East Midlands Police Legal Services for the Interested Party
JUDGMENT ON PUBLIC INTEREST IMMUNITY
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Lord Justice Flaux and
I. Introduction
The Claimants, Charlotte Charles and Tim Dunn, are the parents of Harry Dunn. On 27 August 2019, Harry was killed by a car driven by Anne Sacoolas (“AS”), the wife of Jonathan Sacoolas (“JS”), a member of the Administrative and Technical Staff at RAF Croughton. The more detailed factual and legal background to these proceedings is set out in our judgment of 24 June 2020, following the Case Management Conference (CMC): [2020] EWHC 1620 (Admin) at paras. [1]–[15].
Since that CMC, the Claimants have refined their grounds and now pursue only three of the original five grounds we described in that judgment.
In summary, they challenge the Secretary of State's determination that at the time of Harry's death, AS enjoyed diplomatic immunity and in this regard they specifically submit that there was an error in the Secretary of State's interpretation of the Exchange of Notes (Ground 1). They also allege that he unlawfully confirmed and/or advised that AS and JS had immunity from criminal jurisdiction and/or obstructed a criminal investigation (Ground 2), and in consequence breached Article 2 of the ECHR (Ground 3). The Claimants no longer pursue Ground 4 or Ground 5.
The “rolled-up” hearing of this claim is due to take place “remotely” on Wednesday 11 November 2020, and this judgment is concerned with the application of the Secretary of State by Application Notice dated 16 July 2020 (“the PII Application”) to withhold from disclosure, pursuant to CPR 31.19(1), certain passages from three Ministerial Submissions on grounds of Public Interest Immunity (“PII”).
The claim for PII is made by the Permanent Under-Secretary of State (“PUS”) and Head of the Diplomatic Service, Foreign and Commonwealth Office, Sir Simon McDonald KCMG KCVO, under a PII Certificate, dated 9 July 2020. It concerns specific passages within Ministerial Submissions, dated 23 May 1995, 3 July 2001, and 26 July 2006, respectively.
The basis of the PII Application is that there is a real risk that disclosure of those passages would cause serious harm to an important public interest, namely the UK's national security.
The Secretary of State asked that this application be dealt with on “the papers”. That course was opposed by the Claimants. They asked for an oral hearing and also that the Court appoint a Special Advocate. Given this lack of consensus, we had originally directed an oral hearing of the PII Application for the start of the substantive hearing. However, given the recent announcement of new Coronavirus pandemic restrictive measures, the substantive hearing is now due to be conducted remotely.
In those circumstances, and having considered the substance of the application and the helpful submissions of both parties, we decided to deal with the PII Application on paper and this is our judgment on the application.
We have each examined the passages (referred to as “the sensitive text”) which the Secretary of State seeks to withhold. The application is supported by a “sensitive schedule”, which describes the basis of the national security assessments underlying the PII claim. That sensitive schedule has not been disclosed to the Claimants but we have been provided with copies and have considered it.
II. Legal Principles
The governing legal principles are not in dispute:
(1) Claiming PII is a duty, rather than the exercise of a discretion on the part of the decision-maker. In R v Chief Constable of West Midlands Police (ex parte Wiley) [1995] 1 AC 274, at 295G-H, Lord Woolf endorsed Lord Bingham's statement in Neilson v Laugharne [1992] 3 All E.R. 617 that,
“Where a litigant asserts that documents are immune from production or disclosure on public interest grounds he is not (if the claim is well founded) claiming a right but observing a duty. Public interest immunity is not a trump card vouchsafed to certain privileged players to play when and as they wish. It is an exclusionary rule, imposed on parties in certain circumstances, even where it is to their disadvantage in the litigation”.
(2) More recently, the Court of Appeal in Rawlinson & Hunter Trustees SA and others v Director of the Serious Fraud Office (No.2) [2015] 1 WLR 797 observed that:
“the person in possession of a document subject to PII is not entitled to disclose it at will, but has a duty to protect the public interest, if necessary by an application to the Court” (at §30).
(3) 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 as follows (at §24):
“First, the relevant minister (or his lawyers) must decide whether the documentary material in question is relevant to the proceedings in question i.e,...
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