MR JUSTICE BURTON
Approved Judgment
Human Rights Watch & Ors v SoS for the Foreign &
Commonwealth Office & Ors
18. Thus the fact that the claims impose a heavy burden on the
Agencies and the IPT, coupled with the fact that the motivation
for these complaints appears to be to go behind the important
and well-established NCND principle (see §§31-35 of the
Respondents’ Preliminary Submissions), are relevant
considerations which suggest a degree of vexatiousness and
which are highly relevant to how the broad discretion of the
Tribunal should be exercised in these cases. As made clear in
Dransfield v Information Commissioner and Devon County
Council [2015] EWCA Civ 454 at §§67-69 per Arden LJ, both
the burden imposed on a public authority and the motive of the
claimant are relevant considerations when assessing whether
vexatiousness can be inferred. The fact that less than 3% of the
Claimants have included any additional information, over and
above submission of the standard template (prepared by
Privacy International) supports the assessment that the
motivation for these claims is to impose a considerable and
disproportionate burden on the Agencies.”
Our conclusions
41.
We are satisfied that, as to the Respondents’ primary case, the judgments in
Liberty/Privacy No 1 and No 2 were not the finishing point, but only the starting
point for the potential investigation of any proper individual claims. Just as the
claimants in that case, who had established sufficient locus to bring the claim, were
entitled, after the legal issues had been decided on assumed facts, to have
investigations of their own individual circumstances, so that would be the case in
respect of any other such claimant who can satisfy the locus requirement. The
Liberty/Privacy claims were not sample or specimen cases. We are equally satisfied
that any decision that we would not look at the individual cases of other claimants
who could establish the relevant locus would be contrary to Weber and Zakharov,
and to the Tribunal’s own duty within RIPA, and indeed would undermine the
position as accepted by the ECtHR in Kennedy v UK, approving the UK regime so
far as concerns the role of this Tribunal to such an extent that, as set out in paragraph
17 above, it was prepared to recognise in Zakharov that there could in consequence
be a different test for the approach to locus in claims before this Tribunal.
42.
These present applications may have been instigated by a Privacy International
campaign, but each application must still be considered by reference to its own merits,
if any. Whatever the purpose of the campaign, we are satisfied that these applications
will not lead to a breach or evasion of the NCND principle. It is only if a particular
application were investigated and a relevant breach or unlawful act were established
that there would be any question of revelation of the underlying position. We agree
with paragraphs 32-34 of Mr Jaffey’s Reply set out in paragraph 34 above.
43.
However, as discussed, there can be no shortcut if the applications are to proceed, and
considerable care is required before the Tribunal takes upon itself, and imposes upon
the Agencies, 663, or possibly more (subject to any limitation argument), individual
investigations. That is why we have listed these cases for hearing.