MR JUSTICE BURTON
Approved Judgment
Belhadj and Security Service
prepared to allow claims to be put forward on an assumed basis, so too does
the Court, but this Tribunal is also a fact-finding Tribunal (ordinarily in
closed) which the Court is not. Indeed Mr Jaffey pointed to the passage
from the Procedural Ruling of 22 January 2003 set out in paragraph 14(ii)
above for the distinction between a preliminary ruling (on assumed facts)
and a determination. As he submitted orally this case is not simply about a
hypothetical question on the facts, but about whether or not there was, in
fact, a breach of the Claimants’ rights. Indeed that is plain from paragraph
3 of the Order in this case, set out in paragraph 3 above. It is inappropriate
to end up with the same hypothetical statement with which the proceedings
commenced. In any event, the Claimants submit, public scrutiny is required
if there has in fact been an unlawful act by the Respondents (see e.g. Abu
Zubaydah v Poland App no. 7511/13 at paragraph 489 and R v Shayler
[2003] 1 AC 247 at paragraph 21). Mr Jaffey submitted orally there was
nothing calculated to undermine confidence in the Security Services more
than a public perception that unlawfulness had occurred and had not been
revealed.
18.
Mr Eadie submitted orally that if the position is that the Tribunal has no option under
this legislation but to make a public statement that there has been a determination in
favour whenever a breach is found, then Parliament must be taken to have required
the Tribunal to put public safety at risk because of an error or series of errors by the
gatekeeper of public safety. That is a heavy burden for this Tribunal to shoulder. But
the nub of Mr Eadie’s case (subject to his exception, the statutory route to which
seems to us unclear, set out in paragraph 7(1)(b) above, of a case where there has been
a substantial breach and a significant disadvantage) is that public safety and the
preservation of NCND requires that there must ordinarily be a “no determination”,
even though there may be in closed proceedings a finding in favour of a complainant
that there has been some contravention of his rights. There may perhaps be
exceptional circumstances (not relevant in the present case) in which particular facts
may drive the Tribunal to a different conclusion, whether by reference to
discretionary Administrative Court principles pursuant to s.67(2) or otherwise, but we
are satisfied that such cannot possibly be the ordinary case, simply by reference to the
preservation of NCND, to such an extent as to lead to no determination, when in fact
there has been an unlawful act such as to amount to a breach of Article 8.
19.
The Tribunal is persuaded by the submissions of the Claimants set out in paragraphs
16 and 17 above. We consider that it is contrary to the interests of the public and
inconsistent with public confidence in this Tribunal, who are trusted to investigate
matters, which investigation for the most part has to be carried out in closed
proceedings, for the situation to be that the answer of no determination by reference to
s.68(4)(a) could mean that there has been no interception, or could mean that there has
been lawful interception (both as now, in order to preserve NCND) or could mean that
there has been unlawful interception. That level of ambiguity would place the validity
of all the decisions of this Tribunal in doubt. The Tribunal has been entrusted with
the task of investigating complaints, to a large extent in closed proceedings, and
without divulging details which might place security at risk. It would, in the
Tribunal’s judgment, undermine public confidence that Parliament had created a
means of holding the relevant public agencies to account, if the Tribunal’s findings of