Duke of Sussex -v- Secretary of State for the Home Department (privacy order)

Administrative CourtHigh CourtKing's Bench DivisionPrivacy Order

AC/2021/LON/002527
Case Number: CO/3224/2021

In the High Court of Justice
King’s Bench Division
Administrative Court

4 December 2023

Before:
Mr Justice Lane

Between:
The King
On the application of
The Duke of Sussex
-v-
Secretary of State for the Home Department

Order

UPON the substantive hearing of this matter being listed for two and a half days on 5 – 7 December 2023.

AND UPON the defendant’s application under Civil Procedure Rule 39.2(1), (3)(b) and (c) dated 1 December 2023;

AND UPON considering the joint submissions of the claimant and the defendant in support of the application

AND UPON considering the judgment of Mr Justice Swift of 24 March 2022 ([2022] EWHC 682 (Admin)) in these proceedings, and his orders made therein, including the confidentiality order of 24 March 2022 and the confidentiality ring order of 19 June 2023

It is ordered that:

  1. The substantive hearing of this matter will begin in Open Court on Tuesday 5 December 2023, wherein the parties will make opening submissions.

2. Thereafter, the remainder of the hearing will be conducted in Private, pursuant to CPR 39.2(3)(a) – (c).

REASONS

(1) Mr Justice Swift’s judgment of 24 March 2022 held that certain of the information relied upon in this case concerns security arrangements put in place either for the claimant or other public figures in the United Kingdom. As he put it, for “obvious reasons information on such matters usually remains confidential; if it became generally known the effectiveness of the security measures could be compromised.” The public disclosure of information regarding such matters as the level of threat assessments and those for whom such assessments have been carried out; the protective security arrangements applicable to the claimant and to persons other than the claimant; and specific protective security tactics would, as the judge said, “self-evidently be of interest to anyone wishing to harm a person within the scope of the security arrangements and would assist them to piece together previous practice with a view to anticipating present or future security provision.”  I am also satisfied that the information must also be protected as confidential information, publicity of which would be damaging to that very confidentiality.

(2) I have examined the parties’ respective skeleton arguments. It is apparent from these that the material that needs to be protected in the interests of justice is very tightly entangled with less sensitive details required for the court to properly determine the claim. This means that the bulk of the hearing must be in private. I am also aware that there may be submissions regarding the final ambit of the confidentiality ring established by Mr Justice Swift’s order of 19 June 2023 and redactions proposed in respect of further pleadings and evidence served by the parties. If discussion of these matters were to be held in public, that would defeat the object of the hearing.

(3) Like Mr Justice Swift, I have borne in mind the important principle of open justice, as recognised in CPR 39 and in cases such as Cape Intermediate Holdings v Dring [2019] UKSC 38. I have borne in mind 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 (inter alia) national security, public safety and for preventing the disclosure of information received in confidence.

(4) I have therefore had regard to the need to keep any interference to the principle of open justice to the minimum needed to ensure the court can fulfil its chief object; namely, to ensure that justice is done: Scott v Scott [1913] AC 417. The hearing will accordingly begin in public, when counsel for the claimant and the defendant will make their opening submissions on the issues in the case (including relevant law). I am satisfied that interference with the principle will also be mitigated because the court will, following the hearing, produce a judgment which will be in open as well as in confidential form (as was the “permission” judgment of Mr Justice Swift: [2022] EWHC 1936 (Admin)).

(5) Pursuant to CPR 39.2(5), a copy of this order is being published on the website of the Judiciary of England and Wales.