TPL1, R (on the application of) v Secretary of State for Defence [2025] EWHC 609 (Admin)

Neutral Citation Number:[2025] EWHC 609 (Admin)Case No AC-2024-LON-003590
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/03/2025
Before
MRS JUSTICE FARBEY
Between
TPL1ClaimantSECRETARY OF STATE FOR DEFENCEDefendant
Thomas de la Mare KC and Emma Foubister (instructed by Deighton Pierce Glynn Solicitors) for ClaimantCathryn McGahey KC and John Bethell (instructed by Government Legal Department) for DefendantZubair Ahmad KC and Dominic Lewis (instructed by the Special Advocates’ Support Office) as Special AdvocatesHearing Hearing dates: 13 and 14 February 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 19 March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

[1]The Claimant is an Afghan national and a former senior member of the Afghan Special Police Forces. He served with Commando Force 333, an Afghan-led taskforce trained and mentored by United Kingdom Special Forces (“UKSF”). The taskforce is one of a number of units known as the “Triples.” The Claimant was evacuated to the United Kingdom with his wife and children in August 2021 when the United Kingdom Government evacuated British nationals and others at risk from the Taliban, who had taken control of Afghanistan.[2]The Claimant has applied for judicial review of the operation of the Defendant’s ongoing “Triples Review.” Under that Review, the Defendant is reconsidering the cases of members of the Triples who were refused relocation or other assistance under the Afghan Relocations and Assistance Policy (“ARAP”).[3]The Claimant raises three grounds of challenge: i. Under Ground 1, it is contended that the Defendant has unlawfully failed to publish(i) the criteria for determining whether an application falls within the scope of the Triples Review; and(ii) what factors will be considered in individual decisions taken in the Review. ii. Under Ground 2, the Claimant submits that the Defendant has breached proper standards of fairness and the common law duty to give reasons by failing to inform Triples personnel whether (i) their ARAP applications fall within the scope of the Triples Review and (ii) they have been the subject of a negative decision within the Review. iii. Under Ground 3, it is contended that the Defendant has unlawfully failed to seek information from Triples personnel as part of the information gathering exercise that is required in order to make fair decisions. The Claimant submits that any such failure is contrary to the duty of inquiry established by Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] A.C. 1014 (“the Tameside duty”).[4]The Defendant resists the claim on the basis that the Claimant, as someone who is not affected by the Triples Review, lacks standing to bring judicial review proceedings. The Defendant also contends that the grounds of challenge are not arguable and should fail.[5]This is my judgment in relation to the disclosure of certain material that the Defendant has served on the Claimant’s lawyers. The Claimant’s lawyers have very responsibly not passed the material to the Claimant or anyone else, pending this judgment.[6]The Defendant proposes to rely on the material at the hearing of the claim. The Court and the Special Advocates will have an unredacted version, which the Special Advocates will be able to deploy, should they wish to do so. However, the Defendant seeks an Order that the material should be redacted in the open case such that it cannot enter the public domain in unredacted form. The Defendant submits that the material should be kept private in the sense that the unredacted version cannot be shown to anyone who does not presently have a copy.[7]The Claimant and the Special Advocates contend that the material should not be redacted and that the material should move to the open part of the case, with no room for any privacy or other restrictions.[8]I heard submissions on the question of redactions in open and closed session. I heard evidence from a Senior Officer within UKSF in closed session.

The material in dispute and the Defendant’s position

[9]The material in dispute is part of the “Guidance for Caseworkers” (“the Guidance”) that is applied by those within the Ministry of Defence who make decisions under ARAP. The Guidance covers, among other things, the approach to be taken by Ministry of Defence caseworkers when assessing whether an ARAP applicant (including someone who served as a Triple) is eligible for relocation to the United Kingdom as someone who has “worked in Afghanistan alongside a UK Government Department in partnership with or closely supporting and assisting that department.” This is one of the eligibility criteria for a so-called “Category 4” case under the relevant ARAP policy documents.[10]The Defendant has filed and served two versions of the Guidance. In the first version (“Version 1”), references to UKSF were redacted but various dates (“the Dates”) were not redacted. In the second version (“Version 2”), the Dates are redacted but the references to UKSF have been de-redacted. As a consequence, anyone who has access to both versions can read about what UKSF was doing at particular times in Afghanistan.[11]The Defendant’s position is that those involved in producing the evidence in these proceedings on behalf of the Government have made an error that would present a risk to the national security of the United Kingdom unless the Court intervenes.[12]The Defendant has not applied for a confidentiality ring that would allow the Claimant’s lawyers to retain and deploy both versions of the Guidance while prohibiting further circulation of material disclosed in error. Nor has the Defendant asked the Claimant’s lawyers to return their copies, as may happen when a party discloses material in error. The Defendant seeks an Order prohibiting the Claimant’s lawyers from showing the Dates to anyone else and a reporting restriction in relation to the Dates.[13]Before turning to the parties’ competing submissions in more detail, I shall set out the procedural history of the claim which sheds light on how the two versions have come about.

Procedural history

[14]The present claim for judicial review was launched on 29 October 2024. By Order dated 9 December 2024, I directed that the claim be listed for an expedited rolled-up hearing. By application notice dated 13 January 2025, the Defendant sought a declaration pursuant to section 6 of the Justice and Security Act 2013 (“the JSA” or “the Act”) that these proceedings are proceedings in which a closed material application may be made. At the same time, the Defendant applied under section 8 of the Act for permission not to disclose sensitive material other than to the Court and to the Special Advocates.[15]The Defendant’s applications under sections 6 and 8 were listed for hearing on 4 February 2025. At the hearing, I was informed by Ms Cathryn McGahey KC, who appeared with Mr Jonathan Worboys for the Defendant, that she was not in a position to make submissions on disputed points because of an error. The error was to be found in the witness statement of Mr Dan Samedi-Smith as served on behalf of the Defendant. Mr Samedi-Smith is part of the Defence Afghanistan Relocation and Resettlement Directorate within the Ministry of Defence. His open statement refers to a link between the Triples and UKSF. Ms McGahey told the Court in closed session that the link should not have been mentioned in an open document. The two paragraphs in Mr Samedi-Smith’s open statement dealing with the link were the result of an error by those working on the case on behalf of the Defendant.[16]Ms McGahey sought an adjournment to consider the Defendant’s position and to consider whether to apply for a confidentiality ring, which would enable the Claimant’s lawyers to deploy the two paragraphs in Mr Samedi-Smith’s witness statement but would prohibit their further circulation. I made an Order under section 6 of the Act (which was unopposed) and adjourned the section 8 application to a further hearing on 13 February 2025.[17]During the period of the adjournment, on 7 February 2025, the Claimant’s solicitor, Mr Carey, emailed the Defendant’s solicitor, Ms Aslam, saying that he had learned from Counsel that the Defendant had withdrawn his objection to the publication of the Triples’ link to UKSF. Mr Carey sought confirmation that he could provide the BBC with the witness statement and its exhibits. I pause to note that Mr Samedi-Smith’s witness statement has two exhibits, namely the Guidance and a redacted version of the Standard Operating Procedures (as at June 2024) to be applied in the Triples Review. I need say no more about the Standard Operating Procedures which have not been the subject of argument before me.[18]Returning to the procedural history, Mr Carey asked about sending documents to the BBC because the two paragraphs of the witness statement mentioning the link between the Triples and UKSF were covered by a reporting restriction that I had made, out of caution, on 4 February. I was not asked to make any reporting restriction in relation to the Guidance because, at that stage, the link was redacted in the Guidance, so no issue arose.[19]On 10 February, Ms Aslam replied in the following terms:
“So far as the witness statement itself is concerned, that should be straightforward but I am awaiting instructions. Within the exhibit to the witness statement, there is a document as to which the Secretary of State currently expects to serve an updated version with national security redactions that are different to those originally applied… In the circumstances, we would be grateful for your confirmation that you will not distribute the existing version of the exhibit until an updated version is available…”
(emphasis added).[20]On the same day, Mr Carey agreed to Ms Aslam’s request. By a further email sent later the same day, Ms Aslam informed Mr Carey that the Defendant had concluded that it would not be appropriate to apply for a confidentiality ring. The Defendant had decided that further text could be made open but that, if some of that text were transferred to the open case, there would be national security concerns unless other, currently unredacted, parts of the text were correspondingly redacted. The Defendant therefore proposed to serve a new redacted version of what Ms Aslam called “the exhibit” (presumably a reference to the Guidance). She stated that the new version would open up “significantly more text but with a few additional redactions of text that is currently unredacted.” The Claimant would be able to retain the first version for use in the proceedings if that became necessary.[21]By email on 11 February, Mr Carey asked Ms Aslam to clarify the Defendant’s position on redactions. Later that evening, Version 2 of the Guidance was sent to the Claimant’s solicitors by email. The Special Advocates were not consulted on Version 2 before it was sent. They were not asked for their views on the new redactions or given an opportunity to consider whether the new redactions were, or were not, necessary on national security grounds.[22]By email on 12 February, Mr Carey informed Ms Aslam that the newly redacted material in Version 2 was relevant to the issues in the claim and that the Claimant proposed to refer to the Dates in court. The email went on to say:
“We do not understand what the Defendant’s position is: you are not seeking either a confidentiality ring or [an order under the JSA] about this material. You will appreciate that if the Defendant is seeking to restrict the information that has been provided in both redacted and unredacted forms then you will need to make an urgent application with reasons that we can respond to.”
On the same day, the Defendant filed an application for a further order under section 8 of the JSA unaccompanied by submissions or documents.[23]At the adjourned hearing on 13 February, Mr Jonathan Scherbel-Ball appeared for the BBC and applied for the reporting restriction in relation to Mr Samedi-Smith’s witness statement to be lifted. The Defendant did not oppose the application, which I granted. I went on to hear submissions on the status of the Dates as revealed in Version 1. I turn to those submissions.

The parties’ submissions

[24]On behalf of the Claimant, Mr Thomas de la Mare KC with Ms Emma Foubister submitted that the Dates should be part of the Defendant’s open case and made public without restriction. The Defendant was unable to use the JSA to take back information that had already been disclosed to the Claimant’s lawyers in Version 1. The JSA provided a statutory foundation for derogation from the common law principle of open justice. If a public authority decided to disclose material, as had happened in relation to the Dates in Version 1, it was illogical and outside the scheme of the Act for the public authority to seek an Order under section 8 that the material should not be disclosed. The Court could not sensibly be asked to permit a derogation from open justice in relation to material that had already been served and to which a derogation could no longer attach.[25]Mr de la Mare emphasised that, despite being granted an adjournment to apply for a confidentiality ring, the Defendant had not done so. He submitted that a confidentiality ring would in any event be inapt. First, such an arrangement is generally only appropriate if a party is willing to permit his or her lawyers to see documents that cannot be passed on to the party. Secondly, it would be unjust for confidentiality arrangements to be imposed on the Claimant’s lawyers which would prohibit them from telling their client about redacted material when they could not conceive of, and would not be permitted to know, the national security objection to the disclosure of the Dates.[26]Mr de la Mare observed that the use of a confidentiality ring falls outside the section 8 procedure and is a creation of the common law. Under common law principles of public interest immunity (“PII”), the Court was required to balance the strength of the public interest in withholding material from a party against the interests of open justice and the rights of individuals to see and know all the evidence that an opposing party relies on. He submitted that the balance fell clearly in favour of disclosing the Dates as part of the Defendant’s open case, without resort to a confidentiality ring. The Claimant was entitled to know the Dates. The press was entitled to report the Dates in the public interest.[27]Mr de la Mare submitted that the Dates formed part of the substantive criteria by which Triples cases were decided. As such, any applicant seeking to enter the United Kingdom as a Triple would need to know about the Dates in order to know the full reasons for any refusal under the Guidance and under ARAP itself. Unless the Dates were known, individual Triples seeking to challenge adverse decisions would be unable to do so on an informed basis.[28]Mr de la Mare referred to other documents disclosed in these proceedings and correspondence from the Government Legal Department in other cases in which his solicitors act (which I happened to have seen as part of my judicial case load). He submitted that these other sources cast some light on time periods that are taken into consideration when making decisions about Triples personnel under ARAP. He submitted that two consequences flowed. First, the public interest in confidentiality relating to the Dates was not comprehensible when chronological reference points were open in other cases. Secondly, the emerging picture of the Review’s procedures gave rise to questions of public interest which, when all relevant factors were weighed in the balance, called for the Dates to be put into the public domain. The Dates were relevant to the first ground of challenge (alleging a failure to publish the Review criteria) and the third ground (the Tameside ground).[29]On behalf of the Defendant, Ms McGahey with Mr John Bethell informed the Court that the Defendant had, upon reflection, agreed that references to UKSF in the Guidance could not realistically remain redacted in the open case. However, the link between UKSF and the Dates was sensitive. For that reason, the references to UKSF had been de-redacted in Version 2 but the Dates had been freshly redacted. The sensitivity lay in the “mosaic” effect of piecing together information about UKSF.[30]Ms McGahey submitted that the Court should treat the successive versions as amounting to redaction errors within the procedures of section 8 of the Act. As regards a solution, the Court was familiar with the parties reaching agreement as to how disclosure errors could be rectified. A confidentiality ring would be an option. However, Ms McGahey’s primary submission was that one instance of inadvertent disclosure did not oust the provisions of the JSA which still applied. The Court was not entitled under section 8 to undertake a balancing exercise between competing interests but was required to give permission for the Dates not to be disclosed if it considered that the disclosure of the Dates would be damaging to the interests of national security (section 8(1)(c) and (e) of the Act). For reasons to be explained in closed session, Ms McGahey submitted that there would be damage to the interests of national security. Permission to withhold the Dates should be granted.[31]Ms McGahey submitted in the alternative that, if the JSA did not apply, any PII balance at common law would fall firmly in favour of the Court restricting the circulation and publication of the Dates. There was a national security justification which was a powerful reason for restrictions. By contrast, the Dates were not essential to any of the Claimant’s grounds of challenge. The Claimant was not challenging any decision relating to his own ARAP claim as he has made no claim. Instead, the Claimant has chosen to bring a general challenge to the operation of the Review. The challenge does not raise the detailed consideration of ARAP criteria that would arise in the context of whether a particular individual qualified for entry to the United Kingdom. Ms McGahey submitted that all three grounds of challenge may be fully and fairly advanced by the Claimant’s Counsel without reference to the Dates.[32]Ms McGahey explained that the Defendant had sought to adopt a pragmatic solution to the redaction errors. Under that solution, the Claimant’s lawyers would retain Version 1 with the unredacted Dates. If it became clear that the Dates were relevant to any of the grounds of challenge, a confidentiality ring could be established so that the Claimant’s lawyers could rely on Version 1. At present, it would be disproportionate for the Court to undertake the rigours of establishing such an arrangement. In an expedited case, the parties’ and court’s resources could be better used in progressing other matters, such as the Claimant’s lengthy requests for further information made under CPR Part 18.

The Special Advocates

[33]The Special Advocates (Mr Zubair Ahmad KC with Mr Dominic Lewis) said in open and closed session that they had not been given notice of the decision to provide the Claimant with a fresh gist, which was the effect of serving Version 2. They supported Mr de la Mare’s submissions. I suggested in closed session on 13 February that the Special Advocates may want further time to consider Version 2 in order to probe any justification put forward by the Defendant to redact the Dates. They did not take up my invitation but made submissions on the available material.

The Court’s dilemma

[34]Having heard all the submissions, I was left in a dilemma. On the one side of the scales, the Court is under a duty to “ensure that information is not disclosed in a way which would be damaging to the interests of national security” (CPR 82.2(2)). That duty derives from primary legislation and represents Parliament’s intention and the public interest (see section 8(1)(c) and (e) of the Act). Judges must ensure that this statutory duty is fulfilled.[35]Even if the statutory duty does not apply, the Court must (as Mr de la Mare accepted) consider questions of PII at common law. In considering whether to intervene in relation to material that has already been served, the Court must balance the interests of national security against any other competing interests. The Court will, however, show considerable respect for the executive’s assessment of the interests of national security which, under the constitution of the United Kingdom, involves matters of judgment and policy entrusted to the executive (Secretary of State for the Home Department v Rehman [2001] UKHL 47, [2003] 1 AC, para 50, per Lord Hofmann).[36]For these reasons, at the end of the hearing on 13 February, I had in mind that, even if the Defendant’s decision to redact the Dates after disclosing some chronological reference points in other cases was superficially puzzling, the Court should look beyond the superficial because “in matters of national security, the cost of failure can be high” (Rehman, para 62, per Lord Hofmann). The Court should not contribute to any such failure.[37]On the other side of the scales, open justice is a hallmark of democracy. This principle has been classically expressed in Scott v Scott [1913] 417, to which Mr de la Mare referred. In that case, Lord Shaw of Dunfermline cited Bentham’s proclamation:
“Publicity is the very soul of justice.”
Lord Shaw referred to Hallam’s thesis that “the open administration of justice according to known laws truly interpreted” must be the “constant exercise” of judges (p.477). The strength of the foundations of the open justice principle necessitate that derogations from open justice be justified.[38]In considering the competing interests of national security and open justice, I was confronted by the difficulty that, as at the afternoon of 13 February, I did not understand the national security objection to the Dates. I was unable to draw on the assistance of the Special Advocates who had not been consulted about Version 2 before it was served but who declined the Court’s invitation to be given further time to consider whether or how the Defendant’s objection could be probed.[39]While I understand the positions of the parties and the Special Advocates, the Court is the arbiter of the administration of justice. As such, the Court is not (in the present context) bound by the parties’ submissions about what course to take. In the national security context, the Court has its own responsibility (whether under the JSA or under general PII law) to ensure that legal procedures, or some putative litigation advantage to a party, arising from another party’s error, do not result in damage to the public interest. The constitutional imperative of the separation of powers impedes the Court from interfering with the Government’s assessment of the interests of national security as a quasi-sanction for public authority error. That said, the Court also has its own responsibility to ensure the minimum derogation from open justice that is consistent with the interests of national security.[40]In circumstances where I did not understand the national security objection, I was concerned that I should neither reject the objection in a peremptory manner (at the cost of national security) nor accept the objection without proper scrutiny (at the cost of open justice). In the absence of any proposals from the Defendant or the Special Advocates, I adjourned the matter part-heard until the following day and requested that the Defendant provide a witness in order for the Court to probe in closed session the Defendant’s reasons for redacting the Dates.[41]The Defendant provided a Senior Officer within UKSF as a witness on the following day (14 February). The witness was examined by Ms McGahey and cross-examined at length by Mr Ahmad, who probed the need for redactions by referring the witness to documents put into the public domain by the ongoing Independent Inquiry relating to Afghanistan. The witness gave a detailed explanation of the damage to national security that would be caused if the Dates were to enter the public domain.

Conclusions

[42]As the Special Advocates properly accepted, the witness was impressive.[43]If section 8 applies, the conditions for withholding material on grounds of national security are met. If a PII balance is required, I am in no doubt that the Defendant’s error (irrespective of its cause) is no proper ground for the Dates to be put into the open part of the case. As for fairness, I agree with Ms McGahey that the grounds for judicial review do not depend on the Dates. The Claimant can readily submit that the Defendant has unlawfully failed to publish the criteria applied in the Triples Review without reference to the Dates. The Claimant can adequately submit that the Defendant has breached the Tameside duty without needing to know the Dates.[44]I agree with Ms McGahey that the Dates carry less weight in a case that is not concerned with an individual Triples applicant seeking to know the criteria (which may include the Dates) in his own case: that is not the purpose of the present claim. In any event, the interests of national security significantly outweigh the interests of the Claimant, or anyone else, in knowing the Dates.[45]I shall therefore permit the Defendant to rely in open session on Version 2. On grounds of national security, Version 1 shall not be published or reported upon. The extent of restrictions (by way of confidentiality ring or some other arrangement) will be the subject of further argument if not agreed. If the parties cannot agree the terms of a draft Order about other restrictions (principally, whether or not the Claimant himself may have a copy of Version 1), I will hear Counsel at a further hearing.[46]If I turn out to be wrong about the merit of the national security objection, the matter can be revisited. Any further consideration by the Court must be preceded by the involvement of the Special Advocates in the usual way.[47]I elaborate in a closed judgment on my reasons for reaching these conclusions by reference to the evidence that I heard from the witness in closed session. The essence of my reasoning (as opposed to the detailed evidence which underlies it) is expressed above.[48]At my direction, the Defendant and the Special Advocates have agreed a gist of the witness’s closed oral evidence. I have approved the gist under section 8 of the Act. It is set out below as an Appendix to this judgment.[49]During the course of drafting this judgment, I was supplied with a written statement from the witness explaining how the error had come about. I have reached my conclusions, in open and closed, without recourse to the statement because the statement has not undergone the procedure required by section 8 of the Act and by CPR 82.14.[50]In response to the statement, I was provided with correspondence on behalf of the Special Advocates saying that they may wish the Ministry of Defence to provide further evidence. It is open to the Special Advocates to probe the Defendant by making the usual written requests. I will consider any further submissions from them. However, it would not be appropriate for me to delay this judgment in order for the Special Advocates to make enquiries of the Defendant about matters relating to how the error arose, as the cause of the error has no bearing on the national security objection upon which the Defendant is entitled to rely. APPENDIX OPEN GIST OF ORAL EVIDENCE ON BEHALF OF DEFENDANT[1]The Court heard from a Senior Officer with UKSF (“the witness”) about the damage to national security that could result if certain details from the Caseworker Guidance were to be disclosed in OPEN and come into the public domain.[2]The witness identified two particular national security concerns: firstly, the harm that would result from providing additional details of the course of capacity-building operations over time and the relationships maintained to give effect to that capacity building; and secondly, the harm arising from the aggregation of information in the public domain, relating to UKSF operations, other activity and personnel.[3]On the first, the witness explained the importance of relationships with international partners that are built on trust and on a shared view of discretion. Exposing details provides an insight into the nature and endurance of partnered relationships which would undermine that trust, and would be likely to have unintended, adverse, consequences elsewhere, and with other partners, beyond Afghanistan (where the UK’s presence had, of course, now concluded).[4]On the second, the witness drew attention to the dangers of releasing small pieces of information. Such details might, at first sight and in isolation, appear innocuous, but when aggregated with other readily available information, provide a richer picture of how campaigns and operations are conducted – and, critically, about individuals involved in those activities. This risk is compounded by evolving techniques and technology which magnify the risk to national security (including personal security).[5]Notwithstanding the fact that some limited information about UKSF’s involvement in Afghanistan had already been revealed by HMG, the witness believed that the details which were sought to be protected had not previously been publicly avowed in connection with UKSF.[6]The Court was told that dates which the Secretary of State now sought to withhold had been released in error, in a way that should never have happened. The Secretary of State asserted that this should not prevent the Court from declaring that disclosures of this information would be damaging to the interests of national security.

Cited in 1 later judgment