Judicial Review of Coroner’s Public Interest Immunity Decisions in a Troubles‑Related Inquest

Factual and Procedural Background

The proceedings arise from an inquest into the fatal shooting of a 25‑year‑old man (“the deceased”) in 1994 near a security barrier (“the peace line”) separating two communities in a city in a region with a history of terrorist and communal violence. Armed men crossed through a hole in the barrier, opened fire on a taxi in which the deceased was a front‑seat passenger, and killed him. A loyalist paramilitary organisation claimed responsibility. At the time, the area was overlooked by military observation towers. No one has ever been held accountable.

The police service (“Agency A”) accepts that there has not yet been an effective official investigation into the death for the purposes of article 2 of the European Convention on Human Rights (“the ECHR”), and that due to subsequent legislation on conflict‑related offences, Agency A can no longer pursue a criminal investigation. Any further investigation would now have to occur through a statutory public inquiry or through a specialist legacy investigation commission.

An inquest into the death was opened in 1995 but was subject to very substantial delay. Substantive hearings only began in April 2023 before the coroner (“the Coroner”) and were structured into three modules. The final module, addressing “how” the deceased came by his death, was listed for late February 2024. A statutory amendment imposed a hard deadline of 1 May 2024: after that date, the Coroner could only continue an inquest into a Troubles‑related death if all evidence had already been heard and only the final determination or matters subsequent to it remained. It was anticipated that, absent interruption, the evidence would conclude before that date.

The family of the deceased, a central government department (“Department A”) and Agency A were treated as “properly interested persons” in the inquest. That status entitled them to participate actively, including by making submissions. The relevant minister and the Secretary of State for the region (“the Secretary of State”) did not initially apply for that status because their position on public interest immunity (“PII”) aligned with that of Agency A.

Under the governing coronial legislation, the same legal rules on PII that apply in civil courts apply to inquests. If a PII claim is upheld, no evidence relating to the matters covered by the certificate can be admitted in the inquest. Unlike some civil and national security proceedings, there is no statutory closed material procedure for inquests; material that cannot be made public cannot be considered at all.

The Coroner’s task was to answer the four statutory questions of “who the deceased was and how, when and where he came by his death,” and, in light of article 2 ECHR and domestic authority, to address not only “by what means” but also “in what broad circumstances” the death occurred. The Coroner adopted a “scope” document identifying specific factual issues, including whether the killing was by a paramilitary organisation, whether a decoy call lured the taxi to the scene, whether information was passed from members of the security forces to those responsible for the killing, how and when the gap in the peace line was created, whether the death was reasonably preventable, what was known to the authorities about the gap and any prior attacks, and what intelligence the security forces had regarding threats to the taxi firm for which the driver worked.

Community members, including the next of kin, alleged a pattern of loyalist attacks through breaches in the peace line, prior warnings to the police and central government bodies about such breaches and specific activity on the day of the killing, and asserted that no effective preventive steps were taken. They suspected collusion between elements of the security forces and paramilitary groups, including suggestions that information about the taxi firm had been obtained and shared through informants and that the taxi depot had been explicitly targeted based on intelligence recovered from a serviceman and from an informant’s journal. The Coroner intended to investigate these suspicions.

Covert human intelligence sources (“CHIS”) potentially feature in the factual issues. CHIS are critical to counter‑terrorism efforts. To protect them and associated methods, the state operates a “neither confirm nor deny” (“NCND”) policy regarding the status of informants. That policy and broader PII principles aim to prevent disclosure that might identify informers, endanger them or others, deter future recruitment, or reveal sensitive operational methods.

The Ministry of Defence (“Department B”) held relevant material. A minister in Department B issued a PII certificate in January 2024, asserting that disclosure would cause a real risk of serious harm to important public interests, including national security. On 4 March 2024 the Coroner upheld that certificate; no further issue arises about that material.

Agency A disclosed six folders of documents (folders 1–6) to the Coroner, considered relevant or potentially relevant to the inquest. At Agency A’s request, a Minister of State acting on behalf of the Secretary of State issued a PII certificate in February 2024 in respect of those folders and any related evidence. A sensitive schedule, not disclosed publicly, specified the particular information and the precise national security harm claimed.

Subsequently, Agency A identified a seventh folder (“folder 7”), relating to a historical enquiries investigation. The Minister issued a supplementary certificate extending the same PII reasoning to folder 7.

In the principal PII certificate, the Minister accepted that the material met the threshold of relevance to the inquest. He assessed that there remained a serious terrorist threat and that residual groups sought to undermine Agency A’s counter‑terrorism work. He stated that disclosure of the identities of those assisting the police, or of tactics, techniques and procedures, would damage capabilities, enable terrorists to take countermeasures, reduce the ability to obtain intelligence and prevent attacks, and increase the risk and lethality of attacks. He particularly emphasised that intelligence sources supply information on the basis of confidentiality, that breach of confidentiality would seriously deter future cooperation (including recruitment of CHIS, both locally and elsewhere), and that any disclosure leading to identification risked grave danger to individuals. He concluded that disclosure would give rise to a real risk of serious harm to the important public interest in national security and that this outweighed the public interest in disclosure.

Before hearing the final module, the Coroner had to determine the PII claims and whether any limited disclosure could safely be made, for example by providing a non‑sensitive “gist” of the substance of the secret material. She examined the underlying documents and held hearings in February 2024. Agency A, represented by counsel, supported the Minister’s certificates. Counsel retained for the Secretary of State did not appear, as there was initially no divergence between the Secretary of State’s and Agency A’s positions, and Agency A knew the documents best.

On 4 March 2024, the Coroner upheld PII over folders 1–6 entirely. She also upheld PII over folder 7 but considered that some information could potentially be disclosed in gist form. She drafted a proposed “gist 1” and sent it to Agency A. Gist 1 summarized information over which PII had been asserted and was understood to involve a departure from NCND. It was not provided to the Minister or the Secretary of State.

In a closed hearing on 7 March 2024, counsel for Agency A indicated that the material in folder 7 was not amenable to gisting. Later that day, Agency A wrote to the Coroner stating it did not object to any gist in principle but objected to the terms of gist 1 and proposed amendments. Agency A did this without consulting the Minister or the Secretary of State and without alerting the Coroner that the Secretary of State might take a different view.

The Supreme Court later held that where different public authorities have views on national security risks from disclosure, they should first consult one another and seek consensus. Failing that, the authority with primary responsibility for safeguarding national security—typically the Secretary of State—should make the overall assessment and present it to the court. Agency A’s unilateral approach, and the Coroner’s failure to check with the Secretary of State, were criticisms later made by the Supreme Court.

On 8 March 2024, the Secretary of State’s legal representatives wrote to the Coroner objecting to gist 1. However, the same day, after hearing submissions from Agency A but not from the Secretary of State, the Coroner decided that gist 1 would be disclosed unless judicial review was commenced by a deadline (later extended to 11 March 2024).

On 11 and 12 March 2024, separate judicial review claims were issued by Agency A and by the Secretary of State challenging the decision to disclose gist 1, on the basis that it would breach the NCND policy and be contrary to national security. Permission was granted and the claims listed.

Additional police materials then emerged. Agency A proposed that the Coroner consider a revised gist (“gist 2”), which was more general than gist 1. Agency A stated that releasing gist 2 would not cause or risk damage to the public interest and would not breach or depart from NCND. Again, this was done without consultation with, or agreement from, the Minister or the Secretary of State, and without informing the Coroner that a different view might be taken.

At a High Court hearing on 22 March 2024, the Coroner indicated she was minded to adopt gist 2. The Secretary of State opposed that course, and was allowed to amend his judicial review application to challenge gist 2, but that aspect was adjourned. The High Court (a single judge) then dismissed both challenges to the decision to disclose gist 1, applying what he described as ordinary public law review standards. Agency A subsequently accepted that outcome and no longer opposed disclosure of gist 1; the Secretary of State maintained his challenge in respect of gist 2 and, on appeal, also contested the approach to gist 1.

Between 22 March and 11 April 2024, the Coroner held no hearing to take evidence or submissions from the Secretary of State on gist 2. On 11 April 2024 she delivered open and closed rulings deciding to disclose gist 2 instead of gist 1. On 25 April 2024 the High Court dismissed the Secretary of State’s judicial review challenge to gist 2, again applying ordinary public law review principles and rejecting arguments based on a need for “anxious scrutiny” or procedural unfairness.

The Secretary of State appealed to the regional Court of Appeal. Pending the appeal, the Coroner agreed not to disclose either gist. On 30 April 2024, the Court of Appeal dismissed the appeal by majority, with one judge dissenting. The majority upheld the High Court’s approach that only ordinary judicial review standards applied to review of the Coroner’s PII decisions, treated the Coroner as having a wide discretion in regulating the inquest, and rejected grounds of misdirection on the law, procedural unfairness, inadequate reasons, and lack of power to disclose when the inquest could not be completed before the statutory deadline. The dissenting judge identified multiple errors in both the Coroner’s and the High Court’s approaches, including misapplication of the standard for departing from a ministerial national security assessment, failure to conduct the PII balance correctly, failure to consider the statutory deadline, and procedural unfairness in excluding the Secretary of State from the decision‑making process.

The Court of Appeal refused permission to appeal but stayed disclosure of the gists pending any application to the Supreme Court. The Secretary of State applied for permission, which was granted by a panel of the Supreme Court. The Supreme Court expressed concern about the Coroner’s role as a party in judicial review proceedings challenging her own decisions and ensured that neutral mechanisms, including advocates to the court and special advocates, were in place so that adversarial submissions could be made without the Coroner taking an inappropriately adversarial stance. Agency A made submissions in both open and closed parts of the Supreme Court hearing in support of the Coroner’s decision to disclose gist 2.

Separately, because of the statutory deadline and the PII rulings, the Coroner considered whether the inquest remained viable. On 30 April and 1 May 2024 she held that, first, it was impossible to complete the evidence before the 1 May 2024 deadline, so the inquest could not lawfully continue thereafter. Secondly, even if more time were available, her upholding of PII over folders 1–7 (subject only to a gist for folder 7) meant that material of central importance to key issues could not be considered, so a proper and sufficient investigation could not be conducted. She concluded that the inquest was no longer viable on both grounds and stated that given the sensitivity of the PII‑protected material and the lack of any closed material procedure in the inquest, a public inquiry would be required in order for all relevant evidence to be considered.

Legal Issues Presented

1. What is the correct legal standard for a court, on appeal or judicial review, when reviewing a coroner’s decision on PII in relation to disclosure of a gist: is it confined to ordinary public law (legality, rationality, procedural fairness) or must the court itself apply the substantive PII test and determine where the public interest balance lies?
2. What degree of deference must a coroner, and a reviewing court, afford to a ministerial assessment that disclosure of material (or a gist derived from it) poses a real risk of serious harm to national security, particularly in light of the PII principles in Wiley and the NCND policy?
3. Did the Coroner err in law in deciding that gists 1 and 2 sufficiently mitigated or eliminated any real risk of serious harm to national security so that no PII balancing exercise was required, and in treating the risk to national security as only “limited” in the alternative balancing analyses?
4. Was it a legal error and a procedural unfairness for the Coroner to make decisions to disclose gists 1 and 2 without seeking and considering the views and evidence of the Secretary of State, and in misidentifying Agency A, rather than the Secretary of State, as the PII applicant?
5. When making the PII balance regarding gist 2 on 11 April 2024, was the Coroner required to take into account the statutory deadline, which meant the inquest could not be completed and no final determination, verdict or findings could be made?
6. Did the High Court and the majority in the Court of Appeal err in treating the Coroner’s PII decision as an exercise of discretion subject only to ordinary judicial review standards, rather than a determination of a substantive rule of evidence that the appellate or reviewing court must reassess for itself?

Arguments of the Parties

Appellant’s Arguments (Secretary of State)

• The gists, particularly gist 2, would in substance breach the NCND policy by confirming or denying the direct or indirect involvement of informers or revealing sensitive secret information about security agency operations, thereby creating a real risk of serious harm to national security.
• Under the PII principles as explained in Wiley and related authorities, the assessment of the relevant minister on the nature and extent of national security risk must be accepted unless irrational or unsupported by evidence; the Coroner’s approach of merely having “proper regard” or “due regard” to the ministerial assessment was legally insufficient.
• The Coroner erred in concluding that gist 1 and later gist 2 “mitigated” or “prevented” any real risk of serious harm to national security, and thus wrongly dispensed with the PII balancing exercise.
• In the alternative, in carrying out any balancing exercise, the Coroner unlawfully downgraded the national security risk to “limited harm” instead of giving effect to the Minister’s assessment of a real risk of serious harm, without finding that assessment irrational or unsupported.
• The Coroner acted in a procedurally unfair manner by failing to seek or receive evidence and submissions from the Secretary of State before deciding to disclose either gist, particularly where she knew that PII had been asserted on behalf of the Crown and that disclosure would materially alter the risk to national security contemplated by the certificates.
• Agency A’s unconsulted change of position on gisting did not relieve the Coroner of the obligation to obtain the Secretary of State’s views; it was improper to rely solely on Agency A as if it were the PII applicant.
• The High Court and the Court of Appeal erred in reviewing the Coroner’s decision on ordinary public law grounds and in affording her a wide margin of discretion. Application of PII is a question of substantive law, not discretion, and an appellate or reviewing court must decide for itself whether the public interest balance was correctly struck.
• The Coroner’s failure to take into account, when deciding on gist 2, that the inquest could not be completed before the statutory deadline was a material error. That deadline drastically reduced or eliminated the weight of the public interest in disclosure to fulfil the inquest’s statutory function.

Respondents’ Arguments (Agency A and Next of Kin, as Presented in the Judgments)

• Agency A initially supported the Minister’s PII claim but later took the view that while gist 1 was objectionable, a more general gist 2 could be disclosed without causing or risking harm to the public interest and without breaching NCND, because it was non‑specific.
• Agency A argued that independent public authorities with different responsibilities and expertise may legitimately arrive at different assessments of harm to the public interest, and that any resulting differences are for the court to resolve.
• Agency A relied on recommendations that the police service should increase transparency and that the presumption should be in favour of disclosing information unless it is in the public—not merely institutional—interest to withhold it. Its support for gist 2 was framed as part of that transparency approach.
• The next of kin and Agency A sought to uphold the Coroner’s decisions and the lower‑court judgments, contending that the Coroner was exercising her judicial role within a wide discretion to regulate the inquest in pursuit of a “full, fair and fearless” inquiry, and that reviewing courts should be slow to interfere with such merits‑laden decisions.
• In the Court of Appeal, the majority accepted submissions that this was a conventional judicial review in which the task was to assess whether the Coroner’s rulings were lawful, rational and procedurally fair, not to conduct a merits‑based reassessment of the PII balance.
• The majority further accepted that any procedural irregularities arising from the complex sequence of events, including intervening judicial review proceedings and the Coroner’s dealings with gist 1 and gist 2, had not caused unfairness or prejudice to the Secretary of State, who had opportunities to make submissions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223	Standard of irrationality in public law (“Wednesbury irrationality”).	Used to frame the question whether a ministerial national security assessment could be rejected only if irrational or unsupported by evidence, and to criticise the Coroner’s lower threshold of merely having “proper regard” to the Minister’s view.
R v Chief Constable of West Midlands Police, Ex p Wiley [1995] 1 AC 274	Leading PII authority: balancing the public interest in non‑disclosure (e.g. national security) against the public interest in the administration of justice; PII as a duty, not a right; the court’s ultimate responsibility for the decision.	Provided the governing framework. The Supreme Court held that applying the Wiley balance is a matter of substantive law, not discretion, and that appellate/reviewing courts must themselves decide where the public interest lies. The Court also relied on Wiley to emphasise that PII assertions are matters of duty and that courts generally rely on the assessment of those best placed to evaluate the public interest, typically the Secretary of State.
Conway v Rimmer [1968] AC 910	Early PII authority: courts, not ministers, decide whether PII applies; courts may examine the documents themselves and must decide where the public interest lies.	Invoked to show that superior courts have historically reassessed PII claims themselves, including by inspecting documents, rather than merely reviewing decisions of lower courts for error of law or irrationality.
R v Lewes Justices, Ex p Secretary of State for the Home Department [1973] AC 388	Ministers are often the most appropriate persons to assert national security‑based PII; courts attach considerable weight to their assessments but retain the final decision on disclosure.	Used to support the view that, in respect of national security, the Secretary of State is generally best placed to assess the public interest and that courts should accord significant respect to that assessment when applying the PII balance.
R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2010] EWCA Civ 65; [2011] QB 218	Application of PII in relation to redaction of judgments; the role of appellate courts in PII balancing; the need for strong justification to depart from ministerial national security assessments.	Relied on for two main points: (1) an appellate court must itself decide whether a lower court’s PII decision was right or wrong, not merely review for rationality; and (2) in assessing national security risks, courts should not substitute their own view for that of the minister unless there is no proper basis for the minister’s view, i.e. it is irrational or unsupported by evidence.
R (Middleton) v West Somerset Coroner [2004] UKHL 10; [2004] 2 AC 182	Article 2 ECHR requires inquests, in certain cases, to investigate not only “by what means” but also “in what broad circumstances” a person came by his or her death.	Used to explain that the Coroner’s duty regarding “how” the deceased died extended to examining the broader circumstances of the death, including potential state involvement or failures.
R (Maguire) v Blackpool and Fylde Senior Coroner [2023] UKSC 20; [2025] AC 63	Scope of coroners’ article 2 obligations and the appropriate role of a coroner when his or her own decision is under judicial review.	Cited to (a) frame the Coroner’s article 2‑linked duty regarding “how” the deceased died and (b) emphasise that a coroner whose own decision is under challenge should not assume an adversarial role in judicial review proceedings.
R v Inner West London Coroner, Ex p Dallaglio [1994] 4 All ER 139	Coroner’s duty to ensure that relevant facts are fully, fairly and fearlessly investigated, and to set the scope of the inquiry accordingly.	Relied on to describe the Coroner’s general fact‑finding obligations in the inquest.
R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson [1995] QB 1	Further articulation of the coroner’s duty to conduct a full, fair and fearless inquiry and to define its scope.	Cited alongside Dallaglio to inform the description of the Coroner’s duties but distinguished from the specific PII balancing exercise at issue.
Christopher Cummings v The Coroner in the Inquest into the Death of Seamus Dillon [2023] NICA 44	On the status and rights of “properly interested persons” in an inquest.	Used to explain why the family, Department A and Agency A were treated as properly interested persons able to participate fully in the inquest.
In the Matter of an Application by Freddie Scappaticci for Judicial Review [2003] NIQB 56	Explanation of the NCND policy: confirming or denying whether someone is an agent can endanger that person or others and undermine future intelligence gathering; a universal denial policy would be meaningless.	Quoted to set out the rationale for NCND and to contextualise the Secretary of State’s concern that any gist could indirectly confirm or deny informer involvement, thereby endangering sources and damaging intelligence.
R (Begum) v Special Immigration Appeals Commission [2021] UKSC 7; [2021] AC 765	Courts must give considerable respect to executive assessments on national security; distinction between the court’s role in applying legal tests and the executive’s institutional competence and democratic accountability.	Used to support the proposition that, in national security issues, the Secretary of State has primary institutional competence and democratic authority, and that courts must factor that into their assessment of the Minister’s national security evaluation.
U3 v Secretary of State for the Home Department [2025] UKSC 19; [2025] 2 WLR 1041	Reinforces the approach to judicial deference and respect for ministerial assessments in national security matters.	Cited alongside Begum and Shvidler to underpin the level of respect due to the Secretary of State’s national security assessment within the PII framework.
Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] UKSC 30; [2025] 3 WLR 346	Appellate courts’ role in proportionality and public interest assessments; such questions are of high public importance and should be decided directly by senior courts.	Used by analogy to support the conclusion that appellate/reviewing courts must themselves decide the PII balance (a significant public interest issue), rather than defer to the lower court’s discretion.
Re Darley’s Application [1997] NI 384	Appropriate stance of a coroner in judicial review proceedings challenging the coroner’s own decisions: a neutral, non‑adversarial role.	Cited to reinforce that the Coroner should not become an adversarial party in litigation about her own rulings, leading the Supreme Court to put alternative arrangements in place for the appeal.
In the Matter of Three Applications by Hugh Jordan for Judicial Review [2014] NICA 36	Similarly addresses the limited role appropriate for a coroner when his or her decisions are under judicial review.	Used, with Re Darley, to caution against coroners adopting an adversarial litigation stance in challenges to their rulings.
Secretary of State for Foreign and Commonwealth Affairs v Assistant Deputy Coroner for Inner North London [2013] EWHC 3724 (Admin); [2013] Inquest LR 257 (“Litvinenko”)	Set out nine principles (“the Litvinenko principles”) on PII in inquests, including a formulation that a coroner should accept a Secretary of State’s national security assessment unless there are “cogent or solid reasons” to reject it.	Relied on by the Coroner and lower courts, but the Supreme Court held that the fifth Litvinenko principle’s “cogent reasons” formulation is potentially misleading; the correct test is ordinary public law review (irrationality, lack of evidence) of the ministerial assessment, not a free‑standing “cogent reasons” standard.
Re Officer C [2012] NICA 47; [2013] NILR 221	Stated that a coroner has a generous width of discretion in regulating the inquest and that courts should only intervene where the coroner acts unlawfully, irrationally, or with material procedural unfairness.	Invoked by the High Court and Court of Appeal majority to justify a high degree of latitude to the Coroner. The Supreme Court criticised this application, holding that while such discretion may apply to case‑management decisions, it does not extend to the substantive PII balance, which is a matter of law.
Pham v Secretary of State for the Home Department [2015] UKSC 19; [2015] 1 WLR 1591	Discusses standards of judicial review and the concept of “anxious scrutiny” in certain contexts.	Mentioned in the Court of Appeal’s majority judgment as having “no direct bearing”; the Supreme Court did not rely on it substantively in its own reasoning.
Carltona Ltd v Comrs of Works [1943] 2 All ER 560	Establishes that decisions by junior ministers or officials can be treated as decisions of the relevant Secretary of State (“Carltona principle”).	Used to explain that the Minister of State’s PII certificates were properly issued on behalf of the Crown and the Secretary of State.
R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696	Recognises defeating terrorism as a public interest of the first importance.	Quoted to underscore the gravity of the national security interest at stake, reinforcing the need for a high degree of care before making decisions that might jeopardise counter‑terrorism efforts.
Rawlinson & Hunter Trustees SA v Director of the Serious Fraud Office (No 2) [2014] EWCA Civ 1129; [2015] 1 WLR 797	Addresses the duty on parties to litigation to protect the public interest (including in national security) where relevant, not merely their own private interests.	Cited by analogy to support the view that the Coroner, even if the parties did not fully advance national security arguments, had an independent duty to protect that aspect of the public interest and to inform herself fully before disclosing sensitive material.
Al Rawi v Security Service [2011] UKSC 34; [2012] 1 AC 531	Discusses the introduction of closed material procedures and the difficulties for public authorities in litigation where sensitive information cannot be deployed openly.	Used to contrast civil and criminal proceedings, where a public authority can sometimes protect the public interest by not adducing sensitive evidence, with inquests, where the inquisitorial process obliges disclosure to the coroner and offers no “safety valve” of that kind.
Edwards v Bairstow [1956] AC 14	Authorities a reviewing court to treat a factual assessment as erroneous in law where it is unsupported by evidence or is perverse.	Cited as part of the explanation that a court reviewing a ministerial national security assessment on PII grounds applies ordinary public law principles, including checking that the assessment is evidence‑based and not irrational.
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374	Classic authority on grounds of judicial review, including irrationality and the scope of review in matters of national security.	Referred to in support of the proposition that courts apply normal public law principles (irrationality, relevant and irrelevant considerations) when reviewing ministerial assessments, including in PII contexts.

Court’s Reasoning and Analysis

The Supreme Court began by restating the nature of PII. PII decides whether evidence that is otherwise relevant and admissible must nevertheless be treated as inadmissible (or only admitted in a gisted form) because of the harm its disclosure would cause to an important aspect of the public interest, such as national security. Where PII is established, the exclusion of the evidence is a matter of legal obligation, not discretion, and the decision rests with the court, not with the public authority asserting PII.

From this, the Court reasoned that a coroner applying PII is applying a substantive rule of evidence, not exercising a broad case‑management discretion. Consequently, on appeal or judicial review, the higher court’s role is not confined to checking for irrationality or procedural unfairness. It must determine whether the first‑instance decision correctly identified and applied the substantive law. Both sides of the Wiley balance—the public interest in the due administration of justice (or inquest fact‑finding) and the public interest in, for example, national security—are matters of public interest on which an appellate or reviewing court is as well placed as the first‑instance tribunal to form a view.

The Court supported this approach by reference to earlier PII authorities. In Conway v Rimmer and Lewes Justices, the House of Lords assessed the PII question afresh, even inspecting the documents themselves. In Wiley, it likewise made its own assessment. In Mohamed, the Court of Appeal explicitly stated that it had to decide whether the lower court’s PII decision was right or wrong, not simply whether the reasoning was rational.

Turning to the assessment of national security risk, the Court emphasised that while the PII balance is ultimately for the court, certain factors in that balance—particularly the existence and extent of national security risk—lie within the institutional competence of the executive. Drawing on Begum, U3 and Shvidler, the Court held that a minister’s assessment of national security should be accepted unless it is irrational or unsupported by evidence. The appropriate legal test is therefore that of ordinary public law review—Wednesbury irrationality and absence of evidence—rather than a free‑standing requirement for “cogent or solid reasons” as stated in the fifth Litvinenko principle.

The Court accepted one aspect of that principle: if a court is to depart from an executive assessment in the executive’s area of responsibility, it should give clear reasons, both as a matter of discipline and transparency. However, it found the “cogent reasons” formulation potentially misleading, because it might be taken to suggest a standard other than ordinary public law review.

The Court then examined the particular institutional context. In inquests, unlike ordinary civil or criminal proceedings, public authorities cannot choose to withhold sensitive material to protect the public interest: relevant information must be provided to the coroner, who must then apply PII. There is no closed material procedure to allow the coroner to see material that cannot be disclosed publicly. This makes the coroner’s responsibility in balancing competing public interests particularly acute. It also heightens the importance of the coroner informing herself fully about all aspects of the public interest, including national security, before making a decision.

Where different public authorities have potentially overlapping responsibilities and expertise, the Court held that the first step should be consultation among them to seek consensus. If consensus cannot be achieved, the authority with primary responsibility for national security—here, the Secretary of State—should act as a “clearing house,” consulting other relevant bodies and presenting an overall assessment of the national security interest to the court. Courts then ordinarily proceed on the basis of that composite assessment, subject to public law review standards.

Applying these principles, the Court identified several core errors in the approach of the Coroner and of the lower courts.

Failure to Apply the Correct Test to the Minister’s National Security Assessment

The Coroner stated that she had “proper regard” or “due regard” to the assertions in the ministerial certificates and recognised that there were only limited circumstances in which she could depart from them. However, she did not address whether the Minister’s assessment of a real risk of serious harm was irrational or unsupported by evidence, and she did not so find. Nevertheless, she concluded that the risk to national security was less than the Minister had stated: in respect of gist 1 she considered that any risk was mitigated to a level where it did not amount to a real risk of serious harm, and in respect of gist 2 she took the view that risk was sufficiently mitigated or prevented such that the PII balance need not be undertaken.

The Supreme Court held that this was not open to her. Absent a finding that the Minister’s assessment was irrational or without evidential basis, she was required to accept that there was a real risk of serious harm to national security and to conduct the PII balancing exercise on that footing. The High Court judge and the Court of Appeal majority failed to recognise and correct this legal error.

Unlawful Decision that No PII Balancing Exercise Was Required

Because the Coroner concluded that the gists mitigated or prevented any real risk of serious harm to national security, she decided that the PII balance was unnecessary and that disclosure should follow. The Supreme Court held that, given the absence of any lawful basis to discount the Minister’s assessment, this conclusion was erroneous. Further, the Coroner had not taken proper steps to inform herself about the national security implications of gisting, particularly because she had not sought updated views from the Minister or the Secretary of State after the idea of gisting emerged. She therefore lacked a proper evidential basis for her conclusion that the gists removed the real risk of serious harm.

The High Court judge, in upholding the Coroner’s approach, accepted that no balancing exercise was required if risk was mitigated, and did not correct the Coroner’s misapplication of the test. The Court of Appeal majority also failed to identify this as an error.

Flawed PII Balancing Exercises

In the alternative, the Coroner stated that if she were wrong about mitigation and a balance was required, she would still conclude that the public interest in disclosure outweighed the public interest in non‑disclosure. However, in doing so she treated the national security harm as “limited” rather than as involving a real risk of serious harm as assessed by the Minister. The High Court judge expressly proceeded on the basis that the Coroner had taken into account only a “limited” national security risk.

The Supreme Court held that this alternative balancing exercise was vitiated by the same misapplication of the test. Unless the Minister’s assessment was found irrational or unsupported, the Coroner had to weigh the public interest in disclosure against a properly accepted assessment of a real risk of serious harm to national security. Her failure to do so meant that her balancing exercise was flawed in law. The High Court and Court of Appeal majority again failed to correct this.

Failure to Involve the Secretary of State and Misidentification of the PII Applicant

The Minister’s PII certificates were issued on behalf of the Crown and the Secretary of State. Nonetheless, in her open rulings, the Coroner referred to Agency A as the PII “applicant” and treated Agency A as the body advancing PII. Agency A later proposed and supported gists 1 and 2 without consulting the Minister or the Secretary of State, and without alerting the Coroner to the possibility of differing views. The Coroner made decisions about disclosure without seeking the Secretary of State’s views.

The Supreme Court held that the Coroner erred in both respects. First, she should have recognised that PII was being asserted by the Secretary of State (acting through the Minister), not by Agency A. Second, given the sensitivity and importance of national security and the fact that gisting altered the context of the PII claim, she was under a duty to seek updated, reasoned views from the Secretary of State before deciding whether to disclose any gist. This was particularly so because she had an independent duty to safeguard national security even if parties before her did not fully do so. Her failure meant she decided without taking into account material considerations—namely, the Secretary of State’s position on the effects of disclosing each gist.

The High Court and Court of Appeal majority did not regard these omissions as rendering the process unfair or unlawful, in part on the basis that the Secretary of State could have sought hearings or made submissions. The Supreme Court rejected that reasoning, holding that the onus in this context lay on the Coroner to ensure she was properly informed.

Failure to Consider the Statutory Deadline in Balancing for Gist 2

By 11 April 2024, when the Coroner decided to disclose gist 2, it was clear that the inquest evidence could not be completed before the statutory 1 May 2024 deadline. Once that deadline had passed, the Coroner could not lawfully hear further evidence or issue a final determination. Nevertheless, in performing the alternative PII balance for gist 2, she did not take that factor into account.

The Supreme Court held this to be a further material error. The existence of the deadline was known to the Coroner and substantially diminished the weight of the public interest in disclosure for the purpose of enabling her to fulfil the inquest’s statutory goals. Disclosure of a gist in an inquest that cannot be concluded would not lead to further investigative steps nor to authoritative findings; rather, it would leave the gist “hanging in the air” and positively invite speculation and rumour, contrary to the objectives of an inquest. The High Court’s conclusion that partial goals of an inquest could still be achieved through disclosure was rejected.

One member of the Court of Appeal had gone further and characterised the Coroner’s disclosure decision as ultra vires once it became clear that the inquest could not be completed. The Supreme Court did not find it necessary to determine that broad proposition, noting that in some exceptional cases a conclusive gist about a central fact might, in principle, achieve a substantive goal even without a final determination. For present purposes, it was sufficient that the Coroner had failed to factor the deadline into the PII balance.

Incorrect Attribution of a Broad Discretion and Use of Ordinary Judicial Review Standards

Both the High Court and the Court of Appeal majority treated the Coroner’s PII decisions as falling within a broad discretion. They relied on authority stressing the coroner’s wide discretion to regulate inquests and suggested that, in such contexts, a reviewing court should be slow to interfere, confining itself to ordinary judicial review grounds.

The Supreme Court distinguished that discretion from the PII function. While the Coroner has broad discretion in case management and in defining the scope of an inquest, the application of PII under Wiley is a matter of substantive law. The issues before the Coroner included: whether there was evidence supporting the Minister’s assessment of risk; whether that assessment was irrational; and where the overall public interest lay. These are evaluative judgments, not exercises of discretion, and on judicial review the higher court must decide whether the Coroner’s legal conclusions were correct, rather than merely whether they were within a reasonable range. The lower courts erred by treating themselves as confined to ordinary supervisory review.

Limited Evidential Value of the Gists

The Court remarked that both gist 1 and gist 2 were very short, highly abstract and indeterminate documents. In its view, even if either gist were admitted, the Coroner could not realistically use it to make material factual findings about the circumstances of the death, nor would it likely prompt further meaningful investigative steps (which would in any case encounter PII objections similar to those already upheld). On that footing, the gists would make no, or only negligible, contribution to the Coroner’s ability to discharge her statutory function. This further undermined any argument that the public interest in disclosure outweighed the properly assessed national security risks.

Comments on the Minister’s Evidence and Agency A’s Position

The Court noted that an officer of an intelligence agency had provided an affidavit supporting the Secretary of State’s position but that the reasons given were expressed largely in general, theoretical terms and that the officer had not seen the underlying confidential material. The Secretary of State accepted before the Supreme Court that more detail could and should have been provided. The Court cautioned that PII evidence should relate general national security concerns to the particular case, to avoid formulaic assertions and to enable the court to perform its role effectively.

Regarding Agency A’s change of position, the Court observed that Agency A had initially supported the PII claim and even advised Department A that a meaningful gist was not feasible without compromising protected interests, but later endorsed gist 2 as harmless. The Court expressed sympathy with Agency A’s wish to demonstrate transparency, but stressed that national security interests should not be treated as a matter of dispute between Agency A and the Secretary of State for the court to resolve. Rather, their proper role is to cooperate in providing the court with a coherent assessment of the national security interest, usually led by the Secretary of State.

Supreme Court’s Application of the Wiley Balance

Having identified the legal errors, the Supreme Court applied the Wiley balance itself. It proceeded on the basis that:

• There was, on the Minister’s assessment (which had not been shown irrational or unsupported), a real risk of serious harm to national security if information of the kind in folder 7, even in gist form, were disclosed.
• The statutory deadline meant the inquest could not be completed, and the Coroner herself had concluded that, even aside from that, the PII rulings prevented a proper and sufficient investigation. The inquest process therefore could not fulfil its statutory function.
• Given the highly abstract and limited informational content of gists 1 and 2, their admission would make no or only negligible contribution to revealing how the deceased died or to fulfilling any other central inquest purpose.

In those circumstances, the Court held that the public interest in protecting national security outweighed the minimal public interest in disclosure through either gist. On a correct application of PII principles, neither gist should be disclosed.

Holding and Implications

Holding: The Supreme Court ALLOWED the appeal by the Secretary of State. It held that the Coroner, the High Court and the Court of Appeal majority had misapplied the PII principles and that, on a proper application of those principles, neither gist 1 nor gist 2 should be disclosed. Accordingly, NEITHER GIST MAY BE DISCLOSED in the inquest proceedings.

Implications for the Parties: The Coroner cannot admit into evidence or disclose to the public any gist derived from the confidential material in folder 7 covered by the ministerial PII certificates. Given the statutory deadline and the Coroner’s own viability ruling, the inquest cannot proceed to a final determination, verdict or findings. If the state remains under an article 2 ECHR obligation to investigate the death, the Court indicated that this could be discharged through a statutory public inquiry with closed procedures as appropriate, or through a review by a specialised legacy investigation commission, both of which could consider the sensitive material under appropriate safeguards.

Broader Legal Implications: The judgment clarifies that:

• Application of PII under Wiley is a matter of substantive law, not discretion. Appellate and reviewing courts must themselves decide whether the correct public interest balance has been struck; they are not confined to ordinary supervisory review.
• A minister’s assessment of the nature and extent of national security risk must generally be accepted unless it is irrational or unsupported by evidence. Courts and coroners cannot downgrade that assessment without applying these public law standards.
• Coroners dealing with PII and national security must ensure that they have fully informed themselves, including by seeking updated, reasoned views from the Secretary of State where necessary, especially if new disclosure proposals such as gisting arise.
• Where a statutory time‑limit prevents an inquest from being concluded, that fact is a material consideration in any PII balancing exercise: it may significantly reduce the weight of the public interest in disclosure for inquest purposes.

The decision refines the interaction between PII, national security, and coronial investigations, but it does so by restating and applying existing principles rather than creating a new doctrinal test. It primarily affects how courts and coroners approach and review PII decisions in sensitive inquests, rather than establishing a new cause of action or remedy.