What are superinjunctions and why was one imposed in Afghan case?
A regular injunction is a court order that prevents certain details of a case from being made public. A superinjunction prohibits disclosure not only of the underlying information but also of the existence of the order itself.
One of the earliest known superinjunctions was obtained by the oil-trading company Trafigura in 2009 to prevent the Guardian from reporting details of toxic waste dumping in Ivory Coast.
They have also been used by celebrities such as the footballers John Terry and Ryan Giggs to try to stop reporting about their private lives.
The Daily Mail said that after its reporter approached the Ministry of Defence (MoD) about the breach, the D-notice committee (formally the Defence and Security Media Advisory Committee) was activated, which advises the press on threats to national security. Compliance with the committee is not obligatory but the Mail said it agreed not to publish the story. It said the government applied for a binding court order after others became aware of the breach.
Ben Wallace, who was defence secretary at the time, told the BBC's Today programme that when ministers went to the high court 'we applied for a four-month injunction, a normal injunction,' and that he did not know why it was converted into a superinjunction in September 2023. He said his priority 'was to protect those people who could have been or were exposed by this data leak'.
Mr Justice Robin Knowles said in his 2023 judgment that he had gone further than what the MoD had requested. 'Although it was proposed that the order (not the hearing) should be in public and published on the court website, I have decided it should be in private and not published on the website, at least at this stage,' he said.
After Paul Rimmer, a former civil servant, carried out a review for the MoD, Mr Justice Chamberlain ordered on 26 June that the injunction be lifted from noon on Tuesday 16 July because Rimmer's conclusions 'fundamentally undermine the evidential basis on which [the courts previously] relied in deciding that the superinjunction should be continued'. This time there was no appeal.
In his review, Rimmer said: 'It appears unlikely that merely being on the dataset would be grounds for targeting. It is therefore also unlikely that family members – immediate or more distant – will be targeted simply because the 'principal' appears in the dataset. Should the Taliban wish to target individuals, the wealth of data inherited from the former government would already enable them to do so.'
The aim was ostensibly to prevent risk to life, but in a judgment in May last year ordering that the superinjunction be lifted – which was subsequently overturned by the court of appeal – Chamberlain said: '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.'
He said the superinjunction was likely to have an adverse effect on those not being relocated as they would not be able to react to any threat or benefit from public pressure on the government to do more for them.
In last month's final judgment, Chamberlain said: 'The assessments in Mr Rimmer's report are very different from those on which the superinjunction was sought and granted. The change is in part due to the passage of time … 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.
Mark Stephens, a partner at Howard Kennedy and a trustee of Index on Censorship, said it might have been justified by the exceptional circumstances but added: 'The difficulty here is, I think you're only entitled to the superinjunction for as long as it is necessary, essentially to preserve life, and it's not clear that this didn't run on a bit longer.'
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