Secretary of State for Defence v Persons Unknown [2023] EWHC 2999 (KB) (23 November 2023)

Secretary of State for Defence v Persons Unknown [2023] EWHC 2999 (KB) (23 November 2023)

The super-injunction was continued for four weeks because (1) credible risk assessments indicated that disclosure could lead to the Taliban obtaining the dataset and endangering thousands of lives; (2) discharging the 'super' element would not meaningfully enhance public scrutiny but could compromise protection; (3) the risk of hostile actors deducing sensitive information from partial disclosures remains real. However, the injunction must be kept under strict review and cannot continue indefinitely, especially given its impact on open justice and democratic accountability.

Citation
[2023] EWHC 2999 (KB)
Parties
Claimant: Secretary of State for Defence; Defendant: Persons Unknown
Jurisdiction
England and Wales
Judgment Date
23 November 2023
Procedural Posture
Interim Injunction (super Injunction) Application / Post Interim Order, Hearing for Continuation/modification
Outcome
Super-injunction continued for four weeks, subject to strict case management directions and further review.
Legal Topics
Super Injunctions, Freedom of Expression, Open Justice, Data Protection, National Security, Article 10 ECHR, Article 2 and 3 ECHR, Closed Material Procedures
Media Law Human Rights Law Public Law National Security Law Super Injunctions Freedom of Expression Open Justice Data Protection +4 more

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Parties

Secretary of State for Defence

Claimant

Persons Unknown

Defendant

Procedural Posture

Interim Injunction (super Injunction) Application / Post Interim Order, Hearing for Continuation/modification

Legal Issues

  1. 1 Whether a super-injunction contra mundum should be continued to prevent disclosure of a sensitive dataset breach involving ARAP applicants
  2. 2 Whether the court has jurisdiction to use closed material procedures in the absence of an excluded party under JSA 2013
  3. 3 How to balance the right to life and national security against open justice and freedom of expression

Ratio Decidendi

The super-injunction was continued for four weeks because (1) credible risk assessments indicated that disclosure could lead to the Taliban obtaining the dataset and endangering thousands of lives; (2) discharging the 'super' element would not meaningfully enhance public scrutiny but could compromise protection; (3) the risk of hostile actors deducing sensitive information from partial disclosures remains real. However, the injunction must be kept under strict review and cannot continue indefinitely, especially given its impact on open justice and democratic accountability.

Court Disposition

Super-injunction continued for four weeks, subject to strict case management directions and further review.

Orders

  • Super-injunction contra mundum continued for four weeks from 3 November 2023.
  • Further return date set for 1 December 2023.