Update – Redactions in judicial review litigation

Simon Kiely and Jonathan Blunden provide an update on the redaction of the identities of officials in judicial review litigation.

In a recent blog, we examined a judgment of the Administrative Court regarding the approach – in the context of judicial review litigation – to redactions of the identities of officials in disclosed documents.

As noted in that blog, the Court, in an authoritative judgment, made clear its view that, in general, a litigant in judicial review proceedings is not entitled to redact, on the ground of relevance, the identities of officials in such disclosure. In this blog, we provide an update on this topic.

Update 1 – further supporting authority – Robert Sneddon v Secretary of State for Justice [2023] EWHC 3303 (Admin)

On 21 December 2023, Mr Justice Fordham handed down judgment in a judicial review claim concerning when in law the Secretary of State for Justice (“SSJ”) can reject a Parole Board recommendation to transfer an indeterminate sentence prisoner to open conditions. In his judgment, Fordham J found in favour of the claimant. Fordham J also made several observations on the issue of redactions.

By way of background (and as explained in further detail in the judgment), the SSJ, having received the judgment in draft, invited Fordham J to “redact the names of “junior civil servants””. Names were originally redacted on grounds of “relevance” when documents were served by the SSJ in April 2023. The SSJ’s approach had been adopted prior to Swift J’s judgment in R (FMA) v SSHD [2023] EWHC 1579 (Admin) (“FMA”) (discussed in the aforementioned blog). Notwithstanding that judgment, the SSJ still invited Fordham J to adopt a cipher to refer to the officials he was proposing to name in his then draft judgment.

Fordham J refused the request. In addition to noting that the SSJ had not filed an application in support, Fordham J was in any event “unpersuaded that there is a legitimate reason to replace names with pretend names, job descriptions or letters “A”, “B”, “C””. Fordham J explained his reasoning in the following terms:

“Well-being matters, for everyone in every decision-making. I have no evidence of what engendered an understanding and expectation; nor why civil servants are so different from others (in this case, prison psychiatrist and offender managers). I wrote my judgment giving a natural narrative. Naming people who are part of the story is benign. Open justice is promoted. There is no special treatment. Judges should not write a judgment asking: ‘is there a necessity for giving this name?’ The question has to be whether there is a necessity for protecting someone’s identity. Everyone was doing their job, to the best of their ability. Nobody is imperilled. I cannot see why anyone would be inhibited from doing their job, to the best of their ability, another time. I cannot see that naming people and how they did their jobs is contrary to any legitimate interest. I see no awkwardness as to what any well-informed person would think. Nor do I see support for a blanket or class-based protection, or a case-specific risk. I have to decide what to do now, on the eve of a hand-down. I completely agree with Swift J in IAB at §§26-30.”

For these reasons, Fordham J declined the SSJ’s request, and his published judgment reflects this.

Update 2 – appeal to the Court of Appeal

Fordham J’s judgment is helpful for a second reason. In paragraph 48 of the judgment, Fordham J confirms that Swift J’s decision in FMA remains in force, a stay having been refused, but that an expedited appeal is due to be heard imminently by the Court of Appeal on 24 January 2024.

For the time being at least, the position for public authorities is clear: in general, litigants in judicial review proceedings are not entitled to redact, on the ground of relevance, the identities of officials in disclosed documents. This is of particular importance to public authority defendants, which are invariably providing disclosure were such considerations might arise. However, judicial review litigants should watch this space. The Court of Appeal may, in due course, change the correct approach and, irrespective of what the Court says, we will be publishing a further update blog when we have its judgment on the FMA appeal.

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