A High Court judge has found that redactions made by the Serious Fraud Office in an internal report on the suspected leaking of confidential case information should not be disclosed, as there is a ‘public interest in protecting the identity of confidential sources’.

The case centres on the criminal investigation launched by the SFO into the mining giant ENRC, which was closed in August. The ENRC alleges that sensitive information about the investigation was leaked by SFO officers and staff to journalists and others.

A report, described as the Byrne report, set out the conclusions of an internal misconduct investigation which found there was a ‘case to answer’ on the part of a senior investigator within the SFO in respect of suspected leaking of confidential information.

In a 26-page judgment in Eurasian Natural Resources Corporation Limited v The Director of the Serious Fraud Office the court refused an application by ENRC to challenge the report’s redactions in relation to public interest immunity (PII), privilege, and the fact that information was irrelevant and confidential.

In written submissions, the SFO said the ‘analysis…has begun’ and the ultimate decision to maintain the claim for PII is for the SFO’s new director.

Dame Clare Moulder, sitting as a High Court judge, said: ‘The impact of the announcement on the PII redactions and whether the SFO will take a different view going forward is therefore unknown.

‘It is an unsatisfactory state of affairs for the court to rule on an analysis which may well change. However…the court was of the view that it would not have been in furtherance of the overriding objective to adjourn the hearing, given the time that had already elapsed on this application.’

Upholding the redactions on the basis of PII, the judge said she was ‘satisfied…there is a real risk that disclosure of the information in question will cause “substantial harm” to a public interest’.

She added: ‘I accept there there is a public interest in protecting the identity of the confidential sources whether or not the particular investigation is ongoing.

‘For each PII redaction the balance lies in favour of non-disclosure and the redactions on the basis of PII are upheld.’

An application for the court to inspect the documents to determine if all redactions on the basis of privilege were rightly made was also refused. The judge said she was ‘not persuaded that it is necessary for the court to inspect the redactions on the grounds of privilege to determine whether the claimed right exists nor in my view is it desirable for the court to undertake this’.

The judgment, parts of which are redacted, said: ‘The claimant now seeks an explanation in relation to each redaction of “its corresponding relevance to the reasoning of the Byrne Report”. It is difficult to see how this could be provided without defeating the very claim to privilege as it would in all likelihood require the SFO in effect to disclose the substance of the communication.

‘In my view given the information that has now been provided as to the basis for the redactions, there is no entitlement for the claimant to receive more information as to the circumstances of the litigation privilege asserted and I am not persuaded that a further order should be made.’

A confidential application, which was heard in private, also failed. Reasons were given in the confidential judgment.