In the matter of an application by the Secretary of State for Northern Ireland for Judicial Review (UKSC/2024/0083)

The Secretary of State for Northern Ireland challenged a coroner's decision to disclose gists of information from documents subject to Public Interest Immunity certificates relating to a 1994 murder in Belfast. The Supreme Court established that courts reviewing PII decisions must form their own view of the public interest balance rather than applying ordinary judicial review standards, and allowed the appeal preventing disclosure.

Facts

Liam Paul Thompson was murdered by loyalist paramilitaries in Belfast on 27 April 1994. The killers gained access through a hole in a peace line separating communities. An inquest was opened in August 1995 but suffered extensive delays. The Minister of State for Northern Ireland issued Public Interest Immunity (PII) certificates covering documents in folders 1-7, asserting that disclosure would cause real risk of serious harm to national security by potentially revealing involvement of covert human intelligence sources (CHISs) or secret intelligence methodologies.

The Coroner upheld the PII certificates but decided to disclose gists of information from folder 7. The Chief Constable initially supported the PII claim but later agreed to disclosure of a revised gist (gist 2), departing from the Secretary of State’s position. The Secretary of State commenced judicial review proceedings challenging the Coroner’s disclosure decisions.

Issues

Standard of Review

The central issue was whether a court judicially reviewing a coroner’s decision to disclose PII-protected information should apply ordinary public law review standards (unlawfulness, irrationality, procedural unfairness) or whether the court should form its own view on the public interest balance.

Assessment of National Security

What test should apply when a coroner considers departing from a ministerial assessment of risk to national security?

Judgment

The Supreme Court unanimously allowed the appeal. Lords Sales and Stephens (with whom Lords Reed, Hodge and Lloyd-Jones agreed) delivered the judgment.

Standard of Review

The Court held that the lower courts erred in applying ordinary judicial review standards. PII principles involve substantive rules of evidence, not discretionary decisions:

Although the Divisional Court’s decision not to redact the … paragraphs involved a balancing exercise, and a difficult one at that, we have to decide whether the decision was right or wrong. We are not simply reviewing the reasoning.

The Court emphasised that both sides of the Wiley balance involve aspects of the public interest on which appellate or reviewing courts are as well-placed as first instance courts to form assessments.

Deference to Ministerial Assessment

The Court clarified that the fifth Litvinenko principle requiring ‘cogent or solid reasons’ to reject ministerial assessments was potentially misleading. The correct approach is to apply normal public law principles:

The court’s role in relation to such an assessment is to apply normal public law principles, including in particular checking that the assessment is not Wednesbury irrational and, as part of that, checking that there is some evidence capable of supporting it.

However, deference to the Secretary of State’s assessment is appropriate due to constitutional responsibilities and institutional competence in national security matters.

Procedural Failures

The Coroner failed to obtain the Secretary of State’s views before deciding to disclose either gist. In the context of national security, this was a fundamental error:

In that context, and given that duty, it is not sufficient to say that the Secretary of State could have, but failed, to apply for status as a properly interested person and if successful in that application could have but failed to make submissions.

The Deadline Issue

The Coroner erred in failing to consider that there was no prospect of completing the inquest before the 1 May 2024 deadline imposed by the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023, which diminished the weight of the public interest in disclosure.

Implications

This judgment significantly clarifies the approach to judicial review of PII decisions. Courts must form their own view on the public interest balance rather than merely reviewing whether the lower court’s decision was lawful or rational. The Secretary of State, not individual police forces, should be treated as the primary authority on national security assessments, and consultation between public authorities is expected before differences are brought to court. The case also emphasises the particular responsibilities of coroners given the absence of closed material procedures in inquests. The Court suggested that a public inquiry with closed procedures would be the appropriate mechanism for investigating the death.

Verdict: Appeal allowed. Neither gist 1 nor gist 2 should be disclosed. The Coroner’s decisions to disclose the gists were set aside.

Source: In the matter of an application by the Secretary of State for Northern Ireland for Judicial Review (UKSC/2024/0083)