Respecting reporters

Free speech restored as court lifts unprecedented super-injunction

When Mr Justice Chamberlain lifted the first super-injunction ever granted contra mundum (“against the world”) at 12 noon yesterday, news outlets published instant and highly detailed coverage of a previously unreportable data leak that was said to have put the lives of nearly 19,000 Afghans at risk and that forced the government to spend millions on relocating them in the UK.

A super-injunction is one whose very existence must not be reported while it remains in force. The level of media coverage demonstrates that, by yesterday, many hundreds of journalists must have known about the court order and the information it protected. But none of them leaked it, as Chamberlain observed at the end of a judgment he published yesterday:

Those involved in this long-running and unprecedented case have known throughout that there would come a time when the super-injunction could no longer be maintained. I decided that this point had been reached over a year ago. The Court of Appeal disagreed.

For the last year, my assumption has been that the injunction might fall to be discharged when the information protected by it leaked into the public domain through the media in the UK or abroad. The parties have updated the court on a continual basis about the extent to which knowledge of the underlying matters has spread.

It is one of the many remarkable features of the litigation — and very much to the credit of the media organisations and individual journalists involved — that there has been no mention in the media of the underlying matters while the super-injunction remained in force.

John Healey apologising in parliament yesterday

John Healey, the defence secretary, gave a lengthy statement to parliament. It emerged that the super-injunction had prevented disclosure of the fact that a defence official — a Royal Marine, according to a detailed report of the legal process in the Telegraph — had breached security protocols in February 2022. He sent trusted contacts an email that included what turned out to be a dataset with personal information and contact details of 18,714 people who had helped British troops during the war with the Taliban and who then applied for relocation to the UK following the Taliban coup in 2021. The dataset was circulated by his contacts and, some 18 months after the blunder, personal details of nine individuals from it appeared on a Facebook group.

A super-injunction was then granted in September 2023 because of fears that the Taliban might find out that the dataset existed and get hold of it. That was believed to put those named on it at risk of torture or murder. It’s acknowledged now that acquisition of the dataset is “unlikely substantially to raise the risk faced by the individuals whose data it includes”.

At the most recent High Court hearing late last month, no fewer than seven media organisations were represented. In addition to the PA news agency, they included the publishers of the News Agents podcast, the Independent, The Times, the Daily Mail, the Telegraph and the Financial Times. Unusually, the BBC was not a party.

Indeed, one of the ways that the Ministry of Defence first heard of the leak was through an approach by journalists working for two media organisations, Associated Newspapers (publisher of the Daily Mail) and Global Media (publisher of the News Agents). They “acted with professionalism”, said Mr Justice Robin Knowles in September 2023, by agreeing not to publish anything for the time being.

Knowles was the High Court judge on vacation duty when the Ministry of Defence first sought an urgent hearing towards the end of August 2023. It was his idea to grant a super-injunction; a lawyer for government would have been happy for the order to be published.

The case was then taken over by Chamberlain, who as judge in charge of the Administrative Court list handles the most important judicial review cases.¹ In a judgment he gave on 23 November 2023, now published, he made some pungent observations:

• The grant of a super-injunction to the government is likely to give rise to understandable suspicion that the court’s processes are being used for the purposes of censorship. This is corrosive of the public’s trust in government…

• The government will have to consider whether the compromise of the dataset requires it to revisit negative decisions about whom to admit to the UK… In the ordinary course, the press would be entitled to comment on those policy decisions; MPs, peers and parliamentary committees would be entitled to ask questions about them; and the government would thus be subject to the ordinary mechanisms of accountability which operate in a democracy. The grant of a super-injunction has the effect of completely shutting down these mechanisms of accountability, at least while the injunction is in force…

• In this case, the policy decisions in question could themselves have implications for the lives and safety of many individuals. If the super-injunction is continued, they will be taken in a scrutiny vacuum. I work on the basis that ministers will do their honest best to take the decisions they consider in the national interest, but it is axiomatic in our system that decisions subject to public and parliamentary scrutiny are not only more legitimate but are also likely to be better than ones taken in secret.

Early last year, Chamberlain allowed news organisations to file evidence. Counsel for the media cross-examined a senior Ministry of Defence official in court. The judge then made another important observation in a judgment delivered on 21 May 2024 (also published yesterday):

• The size and import of the decisions now being taken, both in moral and in financial terms, bring this point into sharp relief. It is fundamentally objectionable for decisions that affect the lives and safety of thousands of human beings, and involve the commitment of billions of pounds of public money, to be taken in circumstances where they are completely insulated from public debate.

Chamberlain then concluded that maintaining the super-injunction was no longer justified. He gave three reasons:

1. Although on balance, the injunction is likely to be having a protective effect on the relocation cohort, there is a significant chance that it is in fact endangering some of this cohort.

2. The effect of the injunction on the much larger non-relocation cohort is likely to be adverse overall, whether or not the Taliban currently have access to the dataset. On the assumption that they do not, the injunction denies those in the non-relocation cohort the opportunity to take action to avoid the threat at the point (which is very likely to occur in the next months or few years) when the Taliban gain access to the database; denies them the ability to benefit from public pressure on the government to do more for them (whether by offering some of them the chance to apply for relocation or by providing financial redress or otherwise); and deprives them of the ability to take properly informed autonomous decisions on issues of fundamental importance to their lives.

3. The sheer scale of the decision-making, in terms of the numbers of people affected and in financial terms, makes further secrecy unlikely to be sustainable for the very substantial period that would be necessary to relocate to the UK the cohort which have been offered the chance to apply for it. The effect of the decision-making on UK citizens (as well as on the affected persons) makes the enterprise of maintaining secrecy for that period objectionable as a matter of principle.

In any event, Chamberlain would have downgraded the super-injunction to an ordinary injunction whose existence could be reported.

The Ministry of Defence appealed. On 26 July last year, Sir Geoffrey Vos, Lord Justice Singh and Lord Justice Warby restored the injunction. The three senior judges said:

We have concluded that the balancing process undertaken by [Chamberlain] was vitiated by a failure properly to factor in the consequences of discharging the injunctions and thereby permitting unrestricted disclosure of the information at issue. We have therefore conducted the necessary balancing exercise for ourselves.

Our conclusion is that the case for continued protection of the information clearly outweighs the competing considerations. We are also satisfied that the super-injunction element of the order remains necessary, to guard against a real and substantial risk that a hostile actor could deduce the nature of the data breach with a consequent risk to life.

The next development was a review carried out for the Ministry of Defence by one of its former officials, Paul Rimmer CBE. A copy of his report was delivered to the court on 25 June 2025 and an edited version of it was published by Chamberlain as an annexe to the judgment he delivered yesterday.

As the judge said,

it includes the conclusion, with respect to individuals whose data is included in the dataset, that acquisition of the dataset by the Taliban is “unlikely to substantially change an individual’s existing exposure given the volume of data already available”.

It also includes the conclusions that “it appears unlikely that merely being on the dataset would be grounds for targeting” and it is “therefore also unlikely that family members — immediate or more distant — will be targeted simply because the “principal” appears in the… dataset.

At a hearing on 26 June, Chamberlain concluded that there was no tenable basis for the continuation of the super-injunction. That was particularly so, he added, “given the serious interference it involves with the rights of the media defendants to freedom of expression and the correlative right of the public to receive the information they wish to impart”.

He ordered the super-injunction to be lifted at 12 noon yesterday, allowing time for the issues to be made public before the parliamentary recess. This time, there was no government appeal.

However, the judge subsequently agreed to issue a much narrower injunction prohibiting anyone with access to the dataset from disclosing the personal data contained in it or describing the types of information contained in its “case notes” column. Anyone who has a copy must return it on request — though “accredited journalists and legal professionals will be exempt from this requirement”.

Finally, Chamberlain raised the question of whether the Ministry of Defence had been overreacting — crying wolf — in 2023. On that, he expressed no opinion. “It will be for others,” he concluded, “to consider whether lessons can be learned from the way the initial assessments in this case were prepared and whether the courts were, or are generally, right to accord such weight to assessments of this kind.”

Comment

Chamberlain’s instinct throughout has been to limit the interference with freedom of expression and parliamentary accountability as far as he could. Judges have no power to prevent matters being raised in parliament but he was acutely conscious that the court’s orders in this case would have precisely that effect.

Experience as both an advocate and as a judge has taught Chamberlain to question assessments by government departments, not because ministers generally seek to mislead courts but because their officials tend to err on the side of caution.

And not only did he allow the media to be involved in the case to the extent permitted by the constraints of national security, he also found the evidence submitted by defence correspondents useful in assessing the wider picture. The judge’s trust in journalists was fully repaid.

We cannot say whether Rimmer would have reached similar conclusions if he had been called in a year ago. Perhaps he would have reflected the more cautious approach taken by the Ministry of Defence at the time and the Court of Appeal would still have reinstated the super-injunction. Indeed, we cannot be entirely sure what the Taliban will do now they know the database exists.

But Chamberlain’s approach to those responsible for our national security is generally one of cautious respect rather than slavish deference. He is certainly no pushover. And that is as it should be.

1. There are other judges who hear judicial review cases, but you might not think so given Chamberlain’s extraordinary productivity.