know the identity of the telecommunications operator to whom the direction under s.
94 had been given. That is said to be required by the principle of open justice. Mr.
Jaffey also argued that there is no realistic claim that it would be contrary to the
interests of national security to disclose the identity of a telecommunications operator
to which directions had been given in 1998 and 2002.
8. However, the common law principle of open justice derived from Scott v Scott
[1913] AC 417 is not absolute, but subject to statutory exceptions. In this case its
application must be subject to Rule 6 (1) which prevents the disclosure of information
contrary to the interests of national security. In principle it would be contrary to the
interests of national security to disclose the identity of any person to whom a s. 94
direction has been given, and that rule must apply to any such information, including
information inadvertently disclosed to one party.
9. The only authority cited in the short argument on this issue was the judgment of
Mitting J in a SIAC case (XX v Secretary of State for the Home Department,
Appeal No: SC/61/2007, 10 September 2010), which deals with the point, which is
common ground, that where information is inadvertently disclosed fairness requires
that the advocate in possession of the information should be able to deploy “all of the
information helpful to XX’s case which he had properly acquired”. We also refer to
the dicta of Maurice Kay LJ in Secretary of State for the Home Department v.
Mohamed (formerly CC) [2014] 1 WLR 4240 at paragraph 20:
“Lurking just below the surface of a case such as this is the
governmental policy of neither confirm nor deny (“NCND”), to
which reference is made. I do not doubt that there are
circumstances in which the courts should respect it. However, it is
not a legal principle. Indeed, it is a departure from procedural
norms relating to pleading and disclosure. It requires justification
similar to the position in relation to public interest immunity (of
which it is a form of subset). It is not simply a matter of a
governmental party to litigation hoisting the NCND flag and the
court automatically saluting it. Where statute does not delineate
the boundaries of open justice, it is for the court to do so. In the
present case I do not consider that MAM and CF or the public
should be denied all knowledge of the extent to which their factual
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