“It is to be emphasised that…HMG has allowed inspection of material falling under the search terms…by making the documentation available for inspection at its premises, rather than passing custody or possession of the documents to the Coroner or myself. HMG also made it clear at the outset…that it reserved its position both (a) as to the question of whether documentation was relevant to the inquest; and (b) as to whether disclosure of the documentation to [P]IPs would be objected to on grounds of public interest immunity.”
“At this stage of the investigative process any decision as to whether a line of inquiry falls within or without the scope of the inquest is necessarily provisional, and will be subject to continuing review in the light of the evidence as it emerges. But a provisional identification of the lines of inquiry that currently appear to be within the scope of the inquest is necessary for the effective management of the investigation. 11. The test that I propose to apply to the inclusion of a line of inquiry is whether: (1) the line of inquiry is at least potentially of causative relevance to the death of Mr. Litvinenko and/or (2) it is in the public interest to pursue a line of inquiry so as to allay suspicion of deliberate wrongdoing.”
“[If relevant] the test is whether there is a real risk that disclosure of the information would cause serious harm to the public interest- in this case, to the national security and/or international relations interests of the United Kingdom. Further, I have considered whether a real risk of serious harm could be prevented by other means (see R v Chief Constable of the West Midlands Police, ex parte Wiley[1995] 1 AC 274 …”
“If, applying the “real risk of serious harm” test, the material attracts PII, the…question is whether the public interest in non-disclosure is outweighed by the public interest in disclosure of material for the purpose of doing justice in the proceedings. I must consider and balance the relevant competing public interests and agree to the disclosure of material if I am satisfied that the overall public interest favours disclosure. However, if I am not satisfied that the overall public interest favours disclosure, the proper course is to make a certificate for the assistance of the Judge, who is the ultimate decision-maker, as to whether the material should be disclosed in the public interest (see Wiley…)”
“In carrying out the balancing exercise, I have considered that Counsel for the Crown has advised that the information is relevant to the issues in the inquest. Nevertheless, due to the particularly weighty interest in non-disclosure of the information in question, I have reached the considered view that the public interest in non-disclosure outweighs the public interest in disclosure of the information. I have reached the same view in relation to the [undisclosed] schedule attached to this Certificate.”
“Following discussion with those representing the Secretary of State, [we]…are able to say that the material in question is relevant to a number of lines of inquiry identified in the Provisional List of Issues. Further, in ruling on this Certificate, the Coroner will, amongst other matters, address the application in PII terms of the Government’s policy of NCND.”
“9. It is my duty to carry out a full and fearless investigation into the circumstances of the death of Mr. Litvinenko. That I intend to do, and I will take full account of the submissions made to me in the inter-partes hearing. If satisfied that there is a public interest in non-disclosure of any of the material the subject of the certificate, then in balancing that interest against the public interest in disclosure, I will be guided by the observations of Lord Bingham in R (Amin) v Home Secretary…[2004] AC 653 namely that: “In this country…effect has been given to [the duty to investigate] for centuries by requiring such deaths to be publicly investigated before an independent judicial tribunal with an opportunity for the relatives of the deceased to participate. The purposes of such an investigation are clear; to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrong-doing (if unjustified) is allayed…”
“The issues to which the death of Alexander Litvinenko gives rise are of the utmost gravity and have attracted world wide interest and concern…I also recognise…that non-disclosure of material relevant to the issues that I have identified gives rise to a risk that public confidence in the administration of justice will be undermined. 21. I also take into account…the fact that the inquest is likely to be the only occasion on which the circumstances of [the]…death will be examined in a British court…I further bear in mind that the fullest possible disclosure is necessary to enable Marina Litvinenko and her son…effectively to participate in the investigation. 22. It follows that the claim to PII in relation to each of the documents the subject of the certificate must be given the most careful, rigorous and critical examination. The claim to PII can only be upheld to the minimal degree necessary for the protection of such public interest in non-disclosure as may be established to my satisfaction.”
“28. Very broadly speaking the PII claims fell into two parts. First, the Secretary of State claimed PII in respect of the contents of the sample documents… Second, PII was claimed in respect of what might be described as the particulars of the first part of the PII claim – in essence, the subject matter of the sample documents, and the types of sensitivity that are said to underpin the PII claim made in respect of them…this second part of the PII claim was the subject of submissions at the first inter-partes hearing... 29. Dealing first with the latter of the two categories, I have rejected the PII claim in part and have concluded that more detail can and should be given openly as to the subject matter of the sample documents… …31. My detailed reasons for this ruling are set out in the ex-parte judgment. I can say, however, that two factors that I took into account in this regard were, first, the relatively limited damage that I considered that would be caused by such high level disclosure, and, secondly, the importance of providing [P]IPs with at least this level of information about this application. Without this disclosure, [P]IPs other than the Secretary of State would know that I had upheld the PII claim on some issues but rejected it on others, but would not know what those issues were. Without knowing the subject matter of the claims, [P]IPs would be ill equipped to decide whether or not to challenge my ruling, nor would they know whether to support or oppose any challenge brought by the Secretary of State. Further, and, perhaps of most importance, they would not be able to make any submissions to me, or even understand, the provisional conclusions that I have reached as to the procedural implications that the outcome of this PII application has for the future conduct of the inquest.”
“Having given further careful consideration to the issues raised by my PII ruling and taking into account further representations I have received, I have formed the firm view that…[a public] inquiry is necessary if Mr. Litvinenko’s death is to be properly investigated. Notwithstanding the submissions made to me to the effect that the inquest could still undertaken (sic) some investigation of the ‘Russian State Responsibility’ and ‘preventability’ issues on the basis of other evidence, for the reasons I have given in my PII ruling I do not believe that a proper investigation could be conducted without consideration of the HMG material which I have been shown.”
“However wide the power of the court may be held to be, cases would be very rare in which it could be proper to question the view of the responsible Minister that it would be contrary to the public interest to make public the contents of a particular document… I would therefore propose that the House ought now to decide that courts have and are entitled to exercise a power and duty to hold a balance between the public interest, as expressed by a Minister to withhold certain documents or other evidence, and the public interest in ensuring the proper administration of justice. That does not mean that a court would reject a Minister’s view: full weight must be given to it in every case, and if the Minister’s reasons are of a character which judicial experience is not competent to weigh, then the Ministers view must prevail.”
“…Some aspects of the public interest are chiefly within the knowledge of some minister and can best be assessed by him…If a responsible minister stated that the production of a document would jeopardise public safety it is inconceivable that any court would make an order for its production. The desirability of refusing production would heavily outweigh the desirability of requiring it.”
“I conclude…that where a question as to the interest of national security arises in judicial proceedings the court has to act on the evidence…Once the factual basis is established by evidence so that the court is satisfied that the interest of national security is a relevant factor to be considered in the determination of the case, the court will accept the opinion of the Crown…as to what is required to meet it, unless it is possible to show that the opinion was one which no reasonable minister…could in the circumstances reasonably have held. There is no abdication of the judicial function, but there is the common sense limitation recognised by the judges as to what is justiciable; and the limitation is entirely consistent with the general development of the modern case law of judicial review.”
“If [PII] is approached…on the basis that a relevant and material document must be disclosed unless disclosure will cause substantial harm to the public interest, the distinction between a class claim [by the minister] and a contents claim loses much of its significance. As a general rule the harm to the public interest of the disclosure of whole or part of a document dealing with defence or national security or diplomatic secrets will be self-evident and will preclude disclosure.”
“44…As the executive, not the judiciary, is responsible for national security and public protection and safety from terrorist activity, the judiciary defers to it on these issues, unless it is acting unlawfully, or, in the context of litigation, the court concludes that the claim by the executive for public interest immunity is not justified. Self evidently, that is not a decision to be taken lightly… 46…Although the Foreign Secretary accepts that the [control] principle is not absolute, he contends that, having made his own examination of the overall interests of justice, the control principle should be upheld. On the basis of all the evidence including sensitive schedules, I have been unable to eradicate the impression that we are being invited to accept that once the Foreign Secretary has made his judgement of all the relevant considerations, including the interests of justice, and notwithstanding that in law the control principle is not absolute, so far as this court is concerned, as a matter of practical reality, that should be that. However, although in the context of public safely it is axiomatic that his views are entitled to the utmost respect, they cannot command the unquestioning acquiescence of the court. 51. The enormous concentration on the redacted paragraphs may have led us to overlook that this litigation has endorsed the application of public interest immunity and the maintenance of confidentiality over secret information. The Divisional Court has in effect upheld and applied PII principles to a vast body of material.”
“129. The Foreign Secretary has certified in three fully reasoned and carefully worded certificates, supported by accompanying documents, that in his opinion the inclusion of seven paragraphs in the open version of the first judgment would give rise to a real risk to national security, and that the redacted paragraphs should accordingly be redacted from the open version. The court has to decide whether to adopt or to override that view. This assessment potentially involves two steps. The first is to determine whether the publication of the redacted paragraphs would be against the national interest, the second step (which may not arise if the threat to the national interest would not exist or would be very significant) is to weigh that aspect of public interest against the public interest in the…judgment being fully open… 131 While the question of whether to give effect to the certificate is ultimately a matter for the court, it seems to me that, on the grounds of both principle and practicality, it would require cogent reasons for a judge to differ from an assessment of this nature made by the Foreign Secretary. National security, which includes the functioning of the intelligence services and the prevention of terrorism, is absolutely central to the fundamental roles of the Government, namely the defence of the realm and the maintenance of law and order, indeed ultimately, to the survival, of the state. As a matter of principle, decisions in connection with national security are primarily entrusted to the executive, ultimately to Government ministers, and not to the judiciary…In practical terms the Foreign Secretary has unrestricted access to full and open advice from his experienced advisers, both in the Foreign Office and the intelligence services. He is accordingly far better informed, as well as having far more relevant experience, than any judge for the purpose of assessing the likely attitude and actions of foreign intelligence services as a result of the publication of the redacted paragraphs, and the consequences of any such actions so far as the prevention of terrorism in this country is concerned. 132 None the less, the ultimate decision whether to include the redacted paragraphs into the open version of the first judgment is a matter for judicial, not executive, determination. Ever since the decision of the House of Lords in Conway v Rimmer…it has been clear that the question whether a document should be exempted from disclosure in legal proceedings on the ground that disclosure would damage the public interest should ultimately be decided by the court. That is because it is ultimately for a judge, not a minister, to decide whether a document must be disclosed, and whether it can be referred to, in open court. That decision is for a judge not a minister, not least because it concerns what goes on in court, and because a judge is better able to carry out the balancing exercise: see per Lord Woolf in…Wiley page 289C to G, citing Lord Pearson’s observations in the Conway case[1968] AC 910 , 985. Furthermore, practically any decision of the executive is subject to judicial review, and it would seem to follow that a minister’s opinion that a document should not be disclosed in the national interest is in principle reviewable by a court… 135….where a minister has concluded that the public interest justifies excluding a passage from the open version of a judgment, the court must first consider whether there is anything in the suggestion, and, if there is, then unless the inclusion of the passage would have a grave effect on the public interest (in which case that would be the end of the matter), the court must then carry out a balancing exercise. In a case such as the present, it is salutary to bear in mind what Lord Reid said in the Conwaycase…namely “cases would be very rare in which it could be proper [for a court] to question the view of the responsible minister that it would be contrary to the public interest to make public the contents of a particular document.”
“It was logically insupportable and therefore irrational.”