Open ruling on PII applications made by the Secretary of State for the Home Department and Counter Terrorism Police North West (13th September 2019)

MANCHESTER ARENA INQUESTS

Open Ruling on PII applications made by the Secretary of State for the Home Department and Counter Terrorism Police North West

The Home Secretary and Counter Terrorism Police North West (CTP) have claimed Public Interest Immunity (PII) for material in the possession of the Government and the police that is relevant to the scope of the Inquests. In particular, the material relates to the issue of whether the attack by Salman Abedi could have been prevented by the authorities. The provisional scope of the Inquests provides that this includes investigation of:
1. The background of Salman Abedi.
2. His radicalisation, including his relationship with relevant associates (including family members and others), and any relevant external sources (e.g. online) and whether Prevent referrals should have been made in respect of Salman Abedi and/or any of his family members.
3. The knowledge of the Security Service, the police and others about Salman Abedi, his radicalisation, and his relationship with relevant associates, including family members and others.
4. What intelligence and other relevant information on Salman Abedi and/or relevant associates was available to the Security Service, the police and others prior to the attack.
5. When such intelligence/information was available.
6. The assessment, interpretation, dissemination and investigation of intelligence/information relating to Salman Abedi, including, if applicable, whether and how it was shared, who it was shared with, when it was shared, and with what effect (if any).
7. What steps were (or were not) taken by the Security Service, the police and others in relation to Salman Abedi prior to the attack.
8. The reasons for what was/was not done.
9. The adequacy of the steps that were (or were not) taken.
10. The systems, policies and procedures applicable to the review, sharing and actioning of intelligence and other relevant information on Salman Abedi prior to the attack.
11. The adequacy of such systems, policies and procedures.
I have already ruled that Article 2 applies to these Inquests which broadens the matters which I, or a jury if one is required, have to consider in reaching conclusions. As required by section 5(2) of the Coroners and Justice Act 2009, the application of Article 2 means that the Inquests must consider by what means and in what circumstances each person died.
Both the police and the Security Service have conducted their own inquiries as to what happened and why. They have reviewed their procedures in the light of the conclusions of those inquiries and have made and are making changes. Those inquiries were ‘quality controlled’ by Lord Anderson QC who issued his own report. The Intelligence and Security Committee (ISC) of Parliament conducted their own inquiry into the events in 2017, including the Manchester Arena bombing. It issued a report entitled, ‘The 2017 Attacks: What needs to change?’ A heavily redacted version of the ISC report and Lord Anderson’s report are publicly available and provide some, but limited, information. The October 2018 report of Max Hill QC, who was then the Independent Reviewer of Terrorism Legislation into the Terrorism Acts, has a section from paragraphs 4.12 to 4.42 and an annex dealing with the police investigation into the bombing.
Both I and my legal team have had access to unredacted copies of the police and the Security Service reviews and the reports of Lord Anderson QC and the ISC. We have also had access to the base information which informed those reports. Both Lord Anderson QC and the ISC were satisfied that they had been given access to all relevant material as to the knowledge of CTP and the Security Service of Salman Abedi’s activities and beliefs.
I have been assured that my team has seen all the information in possession of CTP and the Security Service relevant to matters which are within the scope of the Inquests. To the best of my knowledge that assurance is correct. Submissions have been made to me on behalf of the families of Saffie-Rose Roussos, Alison Howe and Lisa Lees requesting that, if the disclosure process is not complete, there needs to be an assurance that anything left to be done is carried out. Both the Home Secretary and CTP are aware of their obligations to make disclosure to me and I shall proceed on the basis that full disclosure has been made of all material relevant to the PII claims. I do however remind everyone that there is an ongoing duty of disclosure which must be complied with.
On my behalf, my legal team requested that the Security Service and CTP prepare open statements on matters relevant to the Inquests. To assist with that task, both were provided with lists of topics to cover. This was done with knowledge of the contents of the unredacted reports and underlying materials.
Open statements have been made by Witness X on behalf of the Security Service and by Detective Chief Superintendent Scally on behalf of CTP. The statements set out what the police and the Security Service say they are able to disclose in public. A perusal of those documents reveals that they contain no information which cannot be found in the publicly available reports to which I have already referred.
Further questions have been asked by Counsel to the Inquests (CTI) of both the Security Service and CTP of matters within the scope of the Inquests but which are not dealt with in the open statements. This has triggered the claims for PII by the Security Service and CTP. The responses have set out the material over which PII is being claimed and the reasons for the claims. PII is claimed over disclosure to the public and the Interested Persons in these Inquests. All the information over which PII is claimed has been disclosed to me without objection.
I have received a certificate from the Secretary of State for the Home Department in which she certifies that it is her view that disclosing the material subject to her claim for PII will damage national security. There is no dispute but that national security is an important public interest. The Secretary of State has made clear that she is aware of the importance of the public interest in disclosure of all relevant matters within the scope of the Inquests. That justice should be carried out in public is important, not just to those immediately affected by the terrible events in Manchester, but the public as a whole. She states that she has carried out a balancing act between these two public interests and she is satisfied that the balance is in favour of non-disclosure. While she has set out her conclusions, the Secretary of State accepts that it is ultimately for me to carry out that balancing act.
The public interest in national security that she relies on is the necessity for the Government to protect the people of this country from terrorist atrocities. The tragic deaths of 22 people in Manchester on 22 May 2017 in a terrorist attack is by itself sufficient justification for this public interest. As is well known, it was not the only terrorist attack in 2017 and the country remains under threat of further attacks and will be for the foreseeable future. I have received a similar certificate from Assistant Chief Constable Jackson on behalf of CTP.
I have been considerably assisted by the submissions made both in writing and at two hearings on 29 July and 6 September 2019 on the relevant legal principles. There is a very large measure of agreement as to the law and the way I should approach the task of deciding whether to uphold a claim for PII.
Counsel for the families have stressed to me the importance of public justice and in particular how important it is for the families to know the full details of what happened and why. If there have been failings in the conduct of the Security Service and CTP, it is important for them to know what they were and whether the bombing could have been prevented. Counsel have stressed to me that a claim for PII should not be made to cover up wrong doing. Counsel for the families do accept that there is a public interest in national security. The thrust of their submission is to stress the weight that should be attached to the public interest in open justice when balancing the two.
The claims made for PII are not claims to support a refusal to supply information to me. It is claimed to prevent onward disclosure by me of relevant material to Interested Persons and the wider public. It follows that I am in a position to assess whether the claims are properly made to protect national security and are not done to prevent evidence of wrong doing being made public.
Rule 15 of the Coroners (Inquests) Rules 2013 gives me the power not to provide disclosure to Interested Persons in certain circumstances, including where there is a ‘legal prohibition’ on disclosure. If the claim for PII is successful that would provide a legal prohibition on disclosure.
While the Secretary of State is entitled to express her view as to where the balance falls, it is for me to determine the balance between the public interest in withholding evidence and the requirements of open justice.
The way in which I should approach this task has been set out in a number of important cases. Extensive quotations have been made from those cases in the written submissions to me. I have considered all the relevant cases. I do not consider it necessary for me to quote from them extensively, although I have had regard to them all, but I will set out the way I have applied the principles in reaching my decisions.
Thomas LJ in the case of R (Mohammed) -v- Secretary of State for Foreign and Commonwealth Affairs (no 2) [2009] 1 WLR 2653 set out the four questions that I must ask:
1. Is there a public interest in bringing the material for which PII has been (or is to be) claimed into the public domain?
2. Will disclosure bring about a real risk of serious harm to an important public interest and, if so, which interest?
3. Can the real risk of serious harm to the important public interest be protected against by other methods or more limited disclosure?
4. If the alternatives are insufficient, where does the balance of the public interest lie? The final balancing exercise involves asking whether the public interest in refusing disclosure is outweighed by the public interest of doing justice in the proceedings.
The purpose of any inquest is to conduct a full, fair and rigorous inquiry with the assistance of the Interested Persons to establish how the deaths occurred. There is a substantial public interest in that inquiry being held in public. Rule 11 of the Coroners (Inquests) Rules 2013 requires that an inquest hearing must be held in public. The public may only be excluded under this rule if it is considered by the coroner to be in the interests of national security. The public does not however include Interested Persons who are entitled to hear all the evidence in an inquest.
In this case all parties accept that the answer to question (a) is ‘yes’. There is an important public interest in all of the material over which PII has been claimed being in the public domain. It is relevant to the scope of the Inquests and, subject to the PII claims, should be heard and tested in open court.
As to (b), the public interest claimed in this case is ‘national security’. I have to determine on the basis of the material I have seen whether disclosure would harm that interest and whether it would be serious harm.
As to (c), I have to decide whether there would be some way of putting the information relevant to the Inquests into the public domain which would protect the public interest, such as gisting, disclosing limited information or providing it only to a limited number of people. Although I cannot give further detail in this ruling, I am satisfied there are no alternatives to full disclosure and I must therefore go on to consider question (d). That is, deciding where the balance of the public interest lies.
In cases of this kind different public interests may conflict. Where that happens, the conflicting interests have to be balanced, taking into account all the circumstances of the case.
The cases suggest that where the coroner is satisfied that disclosure will affect national security the balance will normally be against disclosure but, that will depend on the circumstances and how serious the effect on national security is likely to be.
In determining whether disclosure will effect national security and the severity of that effect, the views expressed by the Secretary of State have to be given due deference by the Court. She will have reached her conclusion as a result of advice given by those who have the duty of protecting our security and have expertise in those fields which I do not have. In some cases it seems to be suggested that acceptance of the views of the Secretary of State should be almost unquestioning. I do not accept that the requirement of ‘due deference’ goes that far.
While giving due deference to the views expressed by the Secretary of State on national security, those views should not, as Lord Judge CJ put it in R (Mohamed) v Foreign Secretary (No 2) [2011] QB 218 ‘command the unquestioning acquiescence of the court’ and I should not simply ‘salute a ministerial flag’ as Maurice Kay LJ described it in Secretary of State for the Home Department v Mohamed (formerly CC) [2014] EWCA Civ 559. To do so may, as I have been warned by the families, enable claims to be made for PII not to protect national security but to prevent exposure of wrong doing.
How should I approach this question in practice? The Secretary of State and CTP have supported their claims for PII with evidence. It is for me to examine the evidence and their arguments with care and in detail and decide whether I agree that disclosure would damage national security and whether the extent of that damage outweighs the interest in public justice.
I rely on the Minister and CTP to provide me with the necessary information to allow me to make a proper and balanced assessment. The Security Service who advise the Minister are much more capable than I am of assessing how making certain information public is capable of assisting terrorists in carrying out attacks such as the one in Manchester. It can however be explained to me the ways in which making information public will effect national security. Once that has been done, it is for me to decide whether the Secretary of State’s assessment is correct, making up my own mind. The Security Service and CTP will have given me the necessary tools to decide what, if any, will be the impact on national security of disclosure of a category of information. I then make my own decision.
In the closed hearings and in closed written submissions, assertions made on behalf of the Secretary of State have been tested and further explanations have been sought. Where it has not been apparent to me why making information public would cause serious harm to national security I have sought and been given further explanation. To do otherwise would be to ‘unquestionably acquiesce’ to the Secretary of State’s views.
There is one issue on which there is not agreement on the law as set out in the submissions that I have considered. The Secretary of State in support of her certificate

prays in aid the fact that, if I agreed with her views on PII but concluded that it would not be possible to carry out properly Article 2 compliant Inquests as a result, I could ask her to convert the Inquests into a statutory public inquiry which she would be minded to grant.
Submissions have been made to me by the families that the question of whether or not there could be a statutory inquiry is not relevant to the issue of whether I should uphold the Secretary of State’s and CTP’s claims on PII. Clearly it is not relevant to the question of whether the information is capable of damaging national security or the degree of damage. The issue to which it is said to relate is the balancing act which I have to carry out. In none of the cases has this been considered because it has never previously been the position that a Secretary of State has indicated agreement to convert to a statutory public inquiry before the issue of PII has been determined.
I have considered the competing arguments. If there was an issue as to whether these matters would ever be subject to an inquiry, if not by a Coroner in an inquest, then I can understand that that could be a factor in favour of not upholding PII when deciding where the balance lies. I am not convinced that the contrary applies i.e. that the willingness of the Secretary of State to agree to any request from me for an inquiry supports the balancing act in favour of PII. The Secretary of State’s submission is a limited one in that she only argues that it will be relevant where the decision on the balancing act is a marginal one. I have not found myself in that position.
Counsel for the families argue that these matters have to be dealt with sequentially. First, it is for me to decide whether I uphold the Secretary of State’s and CTP claims on PII. In the light of that decision, I have to decide whether or not I can carry out Article 2 compliant Inquests and only if at that stage I decide I cannot, does the issue of a statutory inquiry become relevant. CTI supported the submissions of the families.
Some support can be found for the Home Secretary’s proposition in paragraph 65 of the judgment of Goldring LJ in the Secretary of State for Foreign and Commonwealth Affairs -v- Assistant Deputy Coroner for Inner North London [2013] EWHC 3724 (Admin). This is one of the decisions arising out of the investigation into the death of Alexander Litvinenko. At paragraph 65 the Court said this, ‘Moreover, there was the further problem that the Coroner did not re-consider his first decision in the light of his subsequent ones. (As I have said, he was never asked to). The outcome of the subsequent PII hearing, in which PII was upheld in respect of Russian State responsibility and preventability, with the consequent view of the Coroner as to whether justice could in any event be done, was relevant to the balancing exercise he initially carried out. In broad terms, given that due to his later rulings the Coroner was of the view that “a full and proper investigation” could not take place anyway, it did in my view become correspondingly more difficult to justify a real risk of damage to national security on the grounds of such an investigation’.
The situation which arose in that case was unusual. The PII claim in that case appears to have had two distinct parts and the issue was whether the decision on part 2 should have led to a reconsideration of the decision on part 1. Here there is only one PII hearing and the suggestion must therefore be that if, having considered some elements of the claims before me, I had decided that it was necessary to request conversion, I could then take that into account when applying the balancing exercise to the other PII claims. In practice, I think that is difficult to achieve when I only have a single group of claims for PII made by the Secretary of State and CTP. I have preferred therefore as the correct approach in this case the sequential one advanced by counsel for the families and CTI.
It is not possible for me to set out the nature of the material for which the Secretary of State and CTP have claimed PII. The material all comes within well recognised areas for which PII has been claimed and granted in the past, although I emphasise that each case is fact specific. By way of example, the general areas of sensitive material over which PII may be claimed in any case are summarised in paragraph 18 of the PII certificate of ACC Russ Jackson on behalf of CTP. The summary of these broad categories is accepted by the Secretary of State. Those categories which are capable of being relevant in this case are set out in further submissions on behalf of the Secretary of State.
The risk which is identified in each case is that disclosure of the information will make it easier for terrorists to kill people by avoiding detection before they are able to carry an attack.
Following clarification by the Secretary of State of one aspect of her claim, I have upheld the claims for PII by both the Secretary of State and CTP. I have done that because I am satisfied, having heard the justifications for them, that to make public those matters would assist terrorists in carrying out the sort of atrocities committed in Manchester and would make it less likely that the Security Service and CT police would be able to prevent them. The balancing exercise strongly favours the material in question not being disclosed. I will, of course, keep this ruling under review.
Mr. Cooper made clear on behalf of the families during oral submissions that they were interested in what information the Security Service and the CT police had and how it affected their subsequent actions and not with how they obtained the information. I have considered in relation to each item over which PII is claimed whether it might be possible by gisting the information to minimise the risk to national security to a proportionate level. For reasons which I cannot elaborate in an open document I am satisfied that matters are too inextricably linked to make that a realistic possibility.
Both Lord Anderson QC and the ISC who were anxious to reveal as much as could be revealed publicly without damaging national security reached the same conclusion as I have done. While they did not go through the same procedure as I have, their reasons for limiting disclosure and, in the case of the ISC, heavily redacting its report were the same.
Having ruled in favour of the claims for PII, I must go on to consider the impact of that ruling on the Inquests. The material is relevant and central to the matters that fall to be investigated. Accordingly, my provisional view is that an adequate investigation, addressing fully the statutory questions set out at section 5(1) Coroners and Justice Act 2009 (read together with section 5(2) and bearing in mind the obligations under Article 2 of the ECHR) could not be conducted within the framework of the Inquests.

SIR JOHN SAUNDERS
13 SEPTEMBER 2019

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