MR JUSTICE BURTON
Approved Judgment
Belhadj and Security Service
unlawful conduct by the Intelligence Agencies could be concealed on the basis of a
non-specific submission of a risk to public safety.
20.
In the Tribunal’s judgment, for the reasons given by the Claimants, neither the
Respondents’ primary case nor their secondary case are consistent with the statutory
scheme. Neither the making of a simply systemic determination, nor a finding that
the Claimants’ LPP material might have been intercepted would provide an adequate
remedy for the citizen where his Convention rights had been violated nor, in the small
number of cases where that might be relevant, would permit an assessment to be made
of the impact of such violation on the individual’s right to a fair trial for the purposes
of Article 6.
21.
We do not agree that NCND has no longer any applicability at all after a successful
complaint, and to that extent what this Tribunal said in its Procedural Ruling
(paragraph 14(ii) above) must be read subject to the fact that NCND may have a role
to play in the giving, or the abbreviating, of the reasons or information to be supplied
after the making of a determination in a complainant’s favour; since Rule 6(1) will
apply, as the Claimants accept, to precisely what information can be given. Certainly
the Tribunal must have regard to matters such as those set out in paragraph 7 above,
whose disclosure could have very damaging effects on the ability of the Respondents
to protect the public. But that information is expressly additional to the s.68(4)
determination, and if, as will be the case, the making of a determination in favour of a
complainant thereby discloses that there has been interference with a complainant’s
Convention rights, that is a consequence of such contravention, and in our judgment
cannot be avoided. NCND is not in itself a statutory rule. It is s.69(6)(b) and Rule
6(1), made consistently with that section, which require the Tribunal to give respect to
the NCND principle, but in our judgment Rule 6(1) does not go so far as to empower
the Tribunal not to disclose to a complainant, in a case where unlawful conduct has
been found, even the fact that the complaint has been determined in his favour. It will
however remain the duty of the Tribunal to bear in mind in supplying such additional
information that it is under the Rule 6(1) duty to secure the continued protection of
the public by the Respondents.
22.
In this case, as can be seen from the Determination of even date, the Tribunal has
concluded that a determination should be made, but in favour of the Third Claimant
only and in respect of two documents. The Tribunal is satisfied that the information it
has there included, and no more, should be disclosed. It has concluded that the
security concerns of the Respondents can be so addressed, without breach of its duty
under Rule 6(1). It follows that, for example, the application by Mr Jaffey for the
production by the Respondents of a detailed witness statement is (save to the extent
provided for in paragraph 13 of the Determination) inappropriate and is refused.
23.
We turn to address the submissions that were made to us at the hearing in relation to
remedies. As is clear from our accompanying Determination, we have, after
considering matters in closed proceedings, concluded that there is no basis for any
compensation in respect of the only finding we have made, namely in respect of two
documents relating to one of the various Claimants. We have carefully considered all
the authorities that have been put before us, as indeed the Tribunal did in B v
Department for Social Development [2010] IPT09/11, and we have noted paragraph
77 of Liberty v United Kingdom, and the Practice Direction ‘Just Satisfaction
Claims’ issued by the President of the ECtHR on 28 March 2007. In particular it is