Ministry of Defence v Global Media and Entertainment Limited & Ors

Mr Justice Chamberlain: Introduction

1. This, my fourth judgment in this case, explains why a super-injunction contra mundum (against the world), granted on the application of the Ministry of Defence (“MOD”) on 1 September 2023, is now being discharged nearly two years later. My first three judgments, which were handed down in private, are also published today.

2. The super-injunction prevented disclosure of: (a) the fact of the release by someone working for the UK Government of a dataset containing personal information and contact details of persons who applied for relocation to the UK from Afghanistan following the Taliban coup in 2021; and (b) the existence of the injunction itself.

3. It was granted and continued because of the risk that, if the Taliban learned about the existence of the dataset, it is likely that they would be able to acquire it and would use it to identify those who had applied for relocation and target them for extra-judicial killing or severe physical ill-treatment.

4. The super-injunction is now being discharged following a review commissioned by the MOD, which concludes that the Taliban likely already possess the key information in the dataset, that it is unlikely that individuals would be targeted simply because of their work for the UK or allied governments or for the former Government of Afghanistan and that the acquisition of the dataset is accordingly unlikely substantially to raise the risk faced by the individuals whose data it includes. Background

5. The dataset at issue in these proceedings contains details of those who had applied under the Afghan Relocations and Assistance Policy (“ARAP”) and the ex gratia predecessor of the Afghan Citizens’ Resettlement Scheme (“ACRS”) for relocation to the UK on the ground that they were at risk from the Taliban as a result of their work with or for the UK prior to the Taliban coup in 2021. It was released in error in early 2022. In August 2023, it became known to the MOD that part of the dataset had been published on a Facebook page. Shortly after this, the MOD applied for an injunction.

6. Although the MOD did not originally apply for one, the judge to whom the application was first made, Robin Knowles J, decided on 1 September 2023 to grant a super-injunction—that is to say an injunction which prohibited disclosure of the existence of the order, as well as the underlying information. Robin Knowles J’s reasons for granting that form of relief were set out in a written ruling handed down in private on 2 September 2023. His ruling is also being published today.

7. Neither the hearing before Robin Knowles J, nor any of the subsequent hearings, has taken place in public. At some of the hearings, representatives of the media who have been notified of the injunction have been present. The number of these representatives has gradually increased. The media organisations now involved are the entities which own The News Agents (a podcast), The Independent, The Times, The Daily Mail, The Daily Telegraph, The Financial Times and the Press Association.

8. There have also been CLOSED hearings from which media representatives were excluded, initially under the inherent jurisdiction (before the media organisations became parties) and then under the Justice and Security Act 2013 . The interests of the media defendants have been represented at these hearings by Tom Forster KC and Paul Mertens, initially as Advocates to the Court and then as Special Advocates.

9. The super-injunction was continued by me after hearings on 13 October 2023, 31 October-1 November 2023, 1 and 18 December 2023, 22 January 2024 and 1-2 February 2024. I gave judgments explaining my reasons on 23 November 2023 (“Judgment no. 1” [2023] EWHC 2999 (KB)) and 15 February 2024 (“Judgment no. 2” [2024] EWHC 312 (KB)).

10. In my Judgment no. 1, at [35]-[39], I noted that the grant of a super-injunction in the circumstances of this case gave rise to serious free speech concerns. The information to which it related was highly relevant to a series of policy decisions being taken by Government about how to safeguard those whose safety had been jeopardised by the release of the dataset. The grant of a super-injunction had the effect of completely shutting down the ordinary mechanisms of accountability which operate in a democracy. This led to what I described as a “scrutiny vacuum”.

11. Nonetheless, I decided on 23 November 2023 that the super-injunction should be continued, based on the MOD’s assessment that there was a “real risk that (i) the Taliban do not already know about the compromise of the dataset; (ii) disclosure of the fact of the dataset would cause them to take steps which lead to their obtaining it; and (iii) in that case, many thousands whose details are included in the dataset could be killed or injured and the UK Government would have no realistic way of safeguarding them”: see [43]. At that stage, the aim was to allow time for a safeguarding plan to be formulated.

12. By the time of my Judgment no. 2, on 15 February 2024, a plan had been formulated, though some of the details were still under discussion. I decided that the injunction should be continued again. The central basis for that decision can be seen from [31(a) and (b)] of my judgment: “(a) There is a real possibility that, had the injunction not been granted, hundreds of ARAP eligible persons who have left Afghanistan since 1 September would not have been able to do so and would instead have been targeted by the Taliban for extra-judicial killing or serious physical harm. There is a further group which the Government has already decided to relocate to the UK. These are the existing ARAP-eligible persons and their dependants currently in Afghanistan, together with the very small additional cohort of about 200 high profile individuals and their dependants, who have been identified for relocation in light of the data incident. This group comprises a little more than 4,000 people. There is a real possibility that continuation of the injunction will save the lives of these people. (b) There is a further group, some of whom may be offered relocation to the UK. This group comprises the 2,000 Triples and others whose ARAP eligibility is to be reconsidered and the 9,000 additional family members whose eligibility may in due course be reconsidered. There is a real possibility that the continuance of the injunction will allow some of this group to leave Afghanistan when they would otherwise be unable to do so. If it does, it may save their lives.”

13. But there was real uncertainty about the effect of the super-injunction on a much larger group affected by the disclosure of the dataset, whom the Government had decided would not be relocated or otherwise assisted. It was very likely that the existence of the dataset would come to the Taliban’s attention “in a matter of months” and continuation of the super-injunction would mean that they could not be forewarned of the danger to them, or given compensation which would enable them to take action to avoid that danger: [31(c)]. The possibility that the continuation of the super-injunction was having an adverse effect on this cohort, and the adverse effects on public and Parliamentary scrutiny (see [31(d)-(f)]), made it important to obtain a clearer evidential picture. So, while continuing the super-injunction, I directed an evidential hearing at which a representative of the MOD would give oral evidence and face questioning by counsel for the media representatives in OPEN (but in private) and by the Special Advocates in CLOSED.

14. The evidential hearing took place on 30 April and 1 May 2024. By that time, there had been further policy decisions about the response to the disclosure of the dataset. It had been decided to offer access to relocation to a further cohort of 2,300 individuals. When immediate family members were included, this amounted to 11,500 people. The costs of relocating this number of people and of housing them in the UK would be “spread over years” and could be assumed to run into “several billion pounds: the sort of money which makes a material difference to Government spending plans and is normally the stuff of political debate”: see [24] of my judgment handed down on 21 May 2024 (“Judgment no. 3”, [2024] EWHC 1220 (KB)). This meant that the cohort who had been offered relocation to the UK amounted to about 20,000 people: see [34].

15. My approach in Judgment no. 3 was to consider the effects of the super-injunction on two cohorts: first, the cohort being offered relocation (see [34]-[43]) and secondly, the cohort not being offered relocation (see [44]-[45]), while also taking into account the effect of the super-injunction on public debate (see [46]-[47]). In reaching my conclusion I said at [48] that the use of intelligence assessments to support the super-injunction was unusual in three respects. I set these out as follows: “49. First, the risk assessments are caveated and there are a number of imponderables. It is tempting to take each assessment as a building block upon which to make further assessments and use this process to generate an overall view as to what is likely to happen if the super-injunction is discharged. But there is a real danger that, in doing so, one builds an edifice with very unsure foundations, ignoring the consequences that may be ensuing or may yet ensue if some of the initial assessments are wrong.

50. Second, even on the MOD’s assessments, there is a significant risk that the relief granted to date has in fact put lives at risk and is still doing so. This risk must be factored into the balance of risks and benefits.

51. Third, the relief granted to date not only prevents public discussion of the full reasons for the Government’s policy. It prevents the public from knowing of the very existence of the policy or the problem which it addresses; and it deprives decision-makers of information, public and Parliamentary scrutiny, all of which are liable to improve the quality of their decisions.”

16. At [53], I recorded my view that, while the super-injunction was on balance likely to be having a protective effect on the relocation cohort, there was a significant chance that it was in fact endangering some of them. The effect of the super-injunction on the larger non-relocation cohort was likely to be adverse overall.

17. These conclusions were based on findings that, if the Taliban already had the dataset, they may currently be using it to target people whose data is included in it. If so, the continuation of the super-injunction might be harming people by depriving them of the opportunity to take protective action: see [38]. Even if the Taliban did not have the dataset, on the MOD’s own assessment, they were likely to acquire it in the next few months or years; and those who had not been relocated at that point would be better off learning of its existence from the MOD (in advance of the discharge of the injunction) than from a “knock on the door by the Taliban”: see [41]. Moreover, the sheer scale of the decision-making, in terms of the numbers involved and the financial cost, meant that further secrecy was not feasible and was objectionable in principle: see [46]-[47]. I therefore ordered that the injunction be discharged with effect from 21 days after the handing down of my judgment, but stayed my order pending appeal.

18. The MOD appealed to the Court of Appeal. That court decided ( [2024] EWCA Civ 838 , “CA Judgment”) that I had made two main errors. First, I had failed to compare what would happen if the injunction were discharged with what would happen if it were continued. “On the undisputed evidence,” they concluded, “the effect of discharging the injunction would be to turn what was a real possibility into a virtual certainty”: [61]. This was a reference to the Taliban acquiring the dataset. Secondly, there was an error in relation to the finding of an adverse effect on the non-relocation cohort. It was wrong to consider that public pressure might assist that cohort, because there would not be time for that pressure to bear fruit in the form of a change in policy: see CA Judgment, [59]-[65]. The Court of Appeal went on to conclude that there was no material change from the position in my Judgment nos 1 and 2 and that the super-injunction should be continued, subject to periodic review by me at least every three months, noting that “the usefulness of the dataset to hostile actors is likely to reduce over time”: see CA Judgment, [80]-[81].

19. The media defendants did not apply for permission to appeal to the Supreme Court. Events since July 2024

20. Since the handing down of the Court of Appeal’s judgment I have kept the super-injunction under regular review as required by that court. In doing so, I have applied to the best of my understanding the approach mandated in its judgment. That approach focuses on the harm which, on the basis of the MOD’s assessments, discharge of the injunction would, on balance, be likely to cause to the relocation cohort.

21. The Court of Appeal made clear that the case for continuation of the super-injunction might be undermined by evidence which affected the assessment that discharge would cause such harm to that cohort. In my regular reviews of the super-injunction, I have therefore been required to look for evidence which might change that assessment in a material way, including (though not limited to) evidence about the diminishing value of the dataset over time.

22. I received regular evidential updates and held OPEN (private) and CLOSED hearings on 11 and 15 November 2024 and 20 and 21 February 2025. Although there were evidential developments which were germane to the assessment in various ways, there was nothing to indicate a sufficiently material change in the evidential position before the Court of Appeal to justify discharge of the injunction, applying the approach set out in their judgment.

23. Prior to the latter hearing I was told that the Government was about to undertake a review of the relocation policy, to be conducted by a retired civil servant who had not been involved in any of the decisions under review. It was made clear by the MOD that this review might provide the kind of material change that could affect the balance. The review was initially to be conducted in the spring of 2025 but took longer than anticipated. I gave directions that, as soon as the report had been prepared it was to be placed before the court.

24. There were further hearings on 9, 19 and 23 May 2025, in part to deal with an application to vary and clarify the injunction by a firm of solicitors, Barings Law, representing more than 600 claimants who were aware that there had been some kind of data breach and were considering bringing a data protection claim. In parallel, I gave further directions determining which of the material before the court could be published in the event that the injunction were discharged. A further CLOSED hearing on that issue was listed for 26 June 2025. The discharge of the super-injunction

25. On the day before this hearing, 25 June 2025, I received a copy of the review report, prepared under the supervision of the retired civil servant Paul Rimmer. An OPEN version of that report is annexed to this judgment. I do not, therefore need to summarise it. It is sufficient to say that 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”.

26. These conclusions fundamentally undermine the evidential basis on which I (in my Judgment nos 1 and 2) and the Court of Appeal relied in deciding that the super-injunction should be continued. I made clear that this was my provisional view at a CLOSED hearing on 1 July 2025, at which the Special Advocates submitted that the super-injunction should be discharged. On 4 July 2025, the Government Legal Department confirmed that the Secretary of State had decided to discontinue the relocation programme and to apply to discharge the injunction.

27. At a CLOSED hearing on 7 July, I heard submissions from Special Advocates acting in the interests of individuals involved in judicial review proceedings against the Secretary of State for Defence. Since the winter of 2023-24, they had been made aware of the existence of the dataset and of the super-injunction. They sought to persuade me to modify the super-injunction to enable the OPEN representatives in their cases to make submissions opposing its discharge. I declined to do that, for reasons which I gave in CLOSED. An OPEN version of those reasons will be made available separately.

28. In essence, there is no plausible basis on which a challenge to the conclusions in the review report would have any real prospect of success, given the wide range of sources on which it is based and the respect which the courts are required to give in public law proceedings to predictive assessments of the kind it contains. In light of the conclusions of the review, there is no tenable basis for the continuation of the super-injunction. This is particularly so 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.

29. I directed that the super-injunction should be discharged at 12 noon on Tuesday 15 July 2025, to allow time for affected persons to be informed before the general public and for further protective measures (which cannot be described in OPEN) to be implemented. I had in mind that news of the underlying matters should be made public before the Parliamentary recess. The application for a further contra mundum injunction

30. On Tuesday 8 July 2025, I heard an application by the MOD for a separate contra mundum injunction imposing limited further restrictions on the disclosure of the dataset, extracts from it or information derived from it. There were further OPEN (private) and CLOSED hearings in relation to this on 11 and 14 July 2025. At a private hearing on Monday 14 July 2025, I announced my decision in principle to grant an interim injunction in terms much narrower than those sought by the MOD, pending a further hearing.

31. The precise terms of the interim injunction can be seen from the order, which is made available alongside this judgment. In essence, it will permit full reporting of almost all the relevant circumstances surrounding the data incident, but will prohibit anyone who has, has had or comes into possession of the dataset or information derived from it from: (i) disclosing the personal data contained in it; or (ii) describing the types of information contained in the “case notes” column. It will also require those in possession of the dataset or extracts of it to deliver up or destroy their copies if requested to do so. Accredited journalists and legal professionals will be exempt from this requirement. The parties will have a further opportunity to file OPEN and CLOSED evidence relevant to the continuation of the interim injunction. There will be a further hearing on Tuesday 22 July 2025 to consider whether to continue it and if so in what form. Matters arising from the review

32. The contents of the report of the review raise questions, some of which require further investigation by the court. There is a CLOSED matter about which I have asked a series of questions and have asked for further submissions. It would not be appropriate to say anything further about it at this stage.

33. There is also another matter. The assessments in Mr Rimmer’s report are very different from those on which the super-injunction was sought and granted. The change is in part due to the passage of time. However, it also reflects information gathered from within Government, from speaking to third parties with knowledge of the situation in Afghanistan and from considering open-source documents. I have recently received a CLOSED witness statement which explains which of this material was available to those who undertook the initial assessments. The MOD has indicated that it intends to disclose an OPEN version of this statement today. It will be for others 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. Postscript

34. 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.