TPL1 v Secretary of State for Defence

A number of grounds were advanced and conceded by the Defendant (including a standing challenge that was abandoned), but the points that remained concerned the Defendant’s obligation to publish: (i) a clear statement about the eligibility criterion for a case to pass in order to go into the substantive review; and (ii) a clear statement of the criteria used (whether in the form of case-worker guidance or otherwise) to decide on how to apply the general ARAP criteria to the Triples cases.

The Defendant said it was under no obligation to publish a scope policy; and that national security justified it in not having published its case-worker guidance it had prepared and operated in order to ensure consistent decision-making. The Claimant won on both points: clear guidance on scope needed to be published, not least because of the publication of prior contradictory and confusing statements; and fairness required, in the especially serious context of the case (where the Triples risked death, torture or serious persecution at the hands of the Taliban) and in circumstances where special forces would otherwise be necessarily reticent about the details of their service, publication of a summary of the decision-making guidance especially insofar as it detailed the nature and timing of service required to be considered to have satisfied the applicable ARAP conditions.

Tom de la Mare KC (leading Emma Foubister of Matrix Chambers) appeared for the Claimant, instructed by Dan Carey and Catherine Dowle of Deighton Pierce Glynn.

The judgment is available here.