The Secretary of State challenged a coroner’s decision to disclose gists of PII-protected information in an inquest into a 1994 Troubles-related murder. The Supreme Court held that reviewing courts must independently assess the public interest balance under PII principles, not merely apply ordinary judicial review standards, and allowed the appeal preventing disclosure.
Background
This appeal arose from an inquest into the murder of Liam Paul Thompson, a 25-year-old man shot dead on 27 April 1994 by loyalist paramilitaries (the Ulster Freedom Fighters) who gained access to the nationalist Springfield Park area of West Belfast through a hole in a peace line. The inquest, opened in 1995, suffered egregious delays and eventually commenced substantive hearings before Coroner Louisa Fee in April 2023. The coronial investigation included questions concerning possible state collusion, whether informers were involved, and whether the security forces failed to prevent the attack despite having relevant intelligence.
The PII certificates and the gisting dispute
The PSNI disclosed seven folders of documents to the Coroner. The Minister of State for Northern Ireland, Mr Steve Baker MP, issued PII certificates on behalf of the Crown certifying that disclosure would cause a real risk of serious harm to national security. The Coroner upheld the PII claim over all seven folders but decided that a gist of the information in folder 7 should be disclosed. The Chief Constable initially objected to a first gist (“gist 1”) but subsequently agreed to a revised version (“gist 2”), without consulting the Secretary of State. The Secretary of State maintained that neither gist should be disclosed, asserting that any gist would breach the “neither confirm nor deny” (NCND) policy regarding informer involvement and would damage national security.
A critical feature of the case was that the Chief Constable and the Secretary of State adopted opposing positions regarding disclosure of gist 2, despite the PII certificate having been issued by the Minister at the Chief Constable’s own request. The Coroner proceeded to decide to disclose both gists without obtaining the views of the Secretary of State.
A statutory deadline under section 44(1) of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 prevented the Coroner from progressing the inquest after 1 May 2024 unless only final findings remained. The judicial review proceedings meant the inquest evidence could not be completed before this deadline. The Coroner herself ultimately concluded the inquest was not viable.
The Issue(s)
The central question was the appropriate standard of review when a court judicially reviews a coroner’s decision to disclose a gist of PII-protected information touching on national security. Specifically:
- Whether the reviewing court is restricted to ordinary public law grounds (Wednesbury irrationality, illegality, procedural unfairness); or
- Whether the court must independently assess the Wiley balance of public interests, forming its own view as to where the overall public interest lies.
Subsidiary issues included: the degree of respect owed to a Secretary of State’s assessment of the national security interest; the Coroner’s procedural obligations to consult the Secretary of State before ordering disclosure; the relevance of the statutory deadline to the balancing exercise; and the correct identification of the party asserting PII.
The Court’s Reasoning
The nature of the PII exercise and standard of review
Lords Sales and Stephens (with whom Lord Reed, Lord Hodge and Lord Lloyd-Jones agreed) held that PII involves a substantive rule of the law of evidence, not an exercise of discretion. The court applying the Wiley balancing test determines as a matter of law whether the public interest in the administration of justice outweighs the countervailing public interest (here, national security). This is an evaluative determination, not a discretionary one:
“Where PII applies, it is a matter of law that the evidence is treated as inadmissible. In that situation neither the court nor the public authority has any choice in the matter.”
Accordingly, on appeal or judicial review, the reviewing court must form its own view as to how the public interests should be balanced, rather than merely checking whether the first instance court’s decision was within a range of reasonable outcomes:
“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.”
This approach was supported by leading authorities including Conway v Rimmer, Lewes Justices, Wiley, and Mohamed, in all of which the higher courts made their own assessment of the public interest rather than deferring to the lower tribunal.
Respect for the Secretary of State’s assessment of national security
The Court held that where the Secretary of State assesses a risk to national security, the court should accept that assessment unless it is Wednesbury irrational or unsupported by evidence. The Court expressly disapproved the formulation in the fifth Litvinenko principle that the assessment should be accepted unless there are “cogent or solid reasons to reject it”:
“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.”
The Secretary of State, not the Chief Constable, was the appropriate authority to make the national security assessment given constitutional responsibilities and institutional competence. The Court emphasised that the Secretary of State acts as a clearing house drawing upon the views of all relevant agencies.
Errors identified in the lower courts
The Court identified multiple errors:
- The Coroner applied a “proper regard” standard rather than accepting the Minister’s assessment unless irrational or unsupported by evidence;
- The Coroner incorrectly concluded that the gists “mitigated or prevented” the risk, thereby dispensing with a balancing exercise, without finding the Minister’s assessment irrational;
- The Coroner failed to obtain the Secretary of State’s views before deciding to disclose either gist, despite the profound importance of the national security interest;
- The Coroner incorrectly identified the Chief Constable rather than the Secretary of State as the applicant for PII;
- The Coroner failed to take into account the 1 May 2024 statutory deadline, which materially diminished the weight of the public interest in disclosure;
- The High Court and Court of Appeal majority erroneously reviewed the Coroner’s decision on ordinary public law grounds rather than forming their own view of the Wiley balance.
The statutory deadline
The Court held that the impossibility of completing the inquest was a material consideration that should have been weighed in the balance. Disclosing gists in an inquest that could not conclude would leave the information “hanging in the air” and would “positively invite speculation and rumour which is the complete antithesis of one of the central purposes of a coronial investigation.”
The Court’s own assessment of the Wiley balance
Performing the balancing exercise itself, the Court concluded:
“The statutory deadline means that the inquest cannot be completed. In any event, as the Coroner herself concluded, the PII decisions she took in relation to folders 1-7 mean that it is not possible for her to fulfil her statutory function. Applying the Wiley balancing test ourselves … it is clear that the balance of the public interest is against disclosure of gist 1 and gist 2.”
Practical Significance
This decision is of major constitutional importance in several respects. First, it authoritatively establishes that on appeal or judicial review of a PII determination, the reviewing court must conduct its own independent assessment of where the overall public interest lies, rather than applying a deferential standard of review. Secondly, it clarifies the degree of respect to be afforded to a Secretary of State’s assessment of national security risk in the PII context, confirming that such assessments should be accepted unless Wednesbury irrational or unsupported by evidence, and expressly disapproving the “cogent or solid reasons” formulation from Litvinenko. Thirdly, it emphasises the particular responsibility of coroners when dealing with sensitive national security material, including the obligation to actively seek the views of the relevant Secretary of State before ordering any form of disclosure. Fourthly, the Court noted the absence of a closed material procedure in inquests as a significant feature, and pointed to alternative investigative mechanisms (public inquiries, the Independent Commission for Reconciliation and Information Recovery) as routes capable of examining all relevant evidence including sensitive material.
Verdict: The appeal was allowed. The Supreme Court held that neither gist 1 nor gist 2 should be disclosed. The decisions of the Coroner, the High Court and the Court of Appeal majority were set aside.
