MR JUSTICE BURTON
Approved Judgment
14.
Belhadj and Security Service
(i)
The principle of NCND (“Neither Confirm Nor Deny”), which has been
upheld on a number of occasions by this Tribunal, is an important principle
to be retained and buttressed in the context of national security. It has often
been explained and justified, and exemplified in relation to confirmation or
denial that a person is an agent (and as such relevant, by analogy, in a case
of confirmation or denial that there is interception or surveillance) in
Scappaticci, Re An Application for Judicial Review [2003] NIQB 56 per
Carswell LCJ.
(ii)
In the application of the Convention, there is a proper balance to be sought
and reached between protection of individual rights and national security.
Mr Eadie refers to Klass v Germany (1979-80) 2 EHRR 214 at paragraph
59.
(iii)
There is a role in the consideration of (in particular) Article 8 for a
conclusion that an interference is de minimis: Mr Eadie refers to M v
Secretary of State for Work & Pensions [2006] 2 AC 91 at paragraphs 63
and 83-84, and to Cha'are Shalom Ve Tsedek v France (App no.
27417/95), Gough v United Kingdom (App no. 49327/11) and Uhl v
Czech Republic (App no. 1848/12).
(iv)
Mr Eadie also submits that the protection for LPP is not absolute: apart
from the obvious “iniquity exception”, he points to BR v Germany
(unreported 23 October 1997), Foxley v United Kingdom (2011) 31 EHRR
25 at paragraph 44 and McE v Prisoner Service of Northern Ireland
[2009] 1 AC 908 at paragraphs 19, 86 and 102.
Save for the iniquity exception, the Claimants do not accept that the authorities in
paragraph 13(iv) above establish the alleged or any limitation on protection for LPP.
Further:
(i)
With regard to Klass, that was a case where the surveillance itself had been
lawful, and the issue was as to the significance (if any) of the absence of
any post-surveillance notification (an issue which was also considered in
Weber and Saravia v Germany (2008) 46 EHRR SE5 and Association
for European Integration and Human Rights v Bulgaria App No.
62540/00). Mr Jaffey submits that there is no case where the ECtHR has
sanctioned the non-disclosure of unlawful acts such as, in the light of the
Declaration in this case, is assumed, and now, in the light of the Tribunal’s
Determination of even date, found in respect of the Third Claimant alone, to
have occurred.
(ii)
Mr Jaffey refers to the words of this Tribunal in the IPT Procedural Ruling
of 22 January 2003 (IPT 01/62 and IPT 01/77), at paragraph 191, a
judgment in which (inter alia) the Tribunal concluded that there was or
should be no limit upon publication of a ruling in respect of a preliminary
issue of law by virtue of the words of s.68(4). The Tribunal said:
“The Tribunal conclude that the natural and ordinary
meaning of “determination” in the relevant context
does not include the legal rulings on the preliminary