MR JUSTICE BURTON
Approved Judgment
(i)
Belhadj and Security Service
S.68(4) provides that the Tribunal shall give notice to a complainant as
there provided, thus an express statutory ouster, to that extent, of NCND.
Mr Jaffey submitted as follows, in paragraph 54(g) of his 3 March
Submissions:
“g. Section 68(4) of RIPA serves an obvious
constitutional purpose. The provisions protect the
Agencies’ legitimate need for secrecy over interception
for so long as they act lawfully. But where the
Agencies breach the law, their conduct must be
disclosed. If it were otherwise, unlawful conduct by the
Agencies would never be subject to public scrutiny.
This requirement is necessary not only on the plain
wording of the legislation, but in order to ensure that
the UK legal regime is compatible with Articles 6 and
8 of the Convention.”
17.
(ii)
The wording in Rule 13(1) and (2) is also mandatory, whereby the Tribunal
shall provide information “in addition to any statement under s.68(4) of the
Act” and, where they make a determination in favour of a complainant, the
Tribunal shall provide him “with a summary of that determination including
any findings of fact”. He accepted that both Rules 13(1) and (2) were
expressly subject, by s.13(4), to the general duty of the Tribunal under Rule
6(1). He submitted that there was no question of any veto by the
Respondents as would, prior to such determination, have applied, by
reference to the bar on any disclosure to the complainant by virtue of Rule
6(2), without the consent of the Respondents, but accepted nevertheless that
by Rule 13(5) the Respondents would be given an opportunity to make
representations, and the Tribunal would remain under the Rule 6(1) duty.
(iii)
Mr Jaffey pointed to the remedy of compensation, which is expressly
available in respect of a successful complaint, under s.67(7). Although
Rule 6(1) would on the face of it apply to the award of such compensation,
there is express provision in Rule 12, set out in paragraph 8 above, whereby
the Tribunal is mandatorily required to give a complainant an opportunity to
make representations as to the amount of the award. Of course such
representations can and will, as in this case, be likely to be made at an
earlier stage when the allegations are simply assumed, and before, after a
closed investigation or hearing, they are found to be established; but it is
difficult to see how there can be such an award without a determination in
favour of a complainant and at least minimal reasons.
The Claimants submit that there can be no doubt that, pursuant to s.68(4), the
Tribunal must make a determination in favour of a complainant if it has made a
finding in his favour of some contravention or unlawful act:
(i)
Mr Jaffey submitted that to suggest otherwise would be in effect to license
the Tribunal to lie.
(ii)
Mr Jaffey submitted there was no room in the legislation for a
differentiation between a technical breach, for which a no determination