26
KENNEDY v. THE UNITED KINGDOM JUDGMENT
“157. The language of rule 9(2) is clear:
'The Tribunal shall be under no duty to hold oral hearings but may do so in
accordance with this rule (and not otherwise).'
158. Oral hearings are in the discretion of the Tribunal. They do not have to hold
them, but they may, if they so wish, do so in accordance with Rule 9.
159. In the exercise of their discretion the Tribunal 'may hold separate oral hearings.'
That exercise of discretion, which would be a departure from normal adversarial
procedures, is expressly authorised by rule 9(4).
160. The Tribunal should explain that, contrary to the views apparently held by the
Complainants' advisers, the discretion in rule 9(4) neither expressly nor impliedly
precludes the Tribunal from exercising their general discretion under rule 9(2) to hold
inter partes oral hearings. It is accepted by the Respondents that the Tribunal may, in
their discretion, direct joint or collective oral hearings to take place. That discretion
was in fact exercised in relation to this very hearing. The exercise of discretion must
take into account the relevant provisions of other rules, in particular the Tribunal's
general duty under rule 6(1) to prevent the potentially harmful disclosure of sensitive
information in the carrying out of their functions. As already explained, this hearing
has neither required nor involved the disclosure of any such information or documents
emanating from the Complainants, the Respondents or anyone else. The hearing has
only been concerned with undiluted legal argument about the procedure of the
Tribunal.
161. The Tribunal have reached the conclusion that the absence from the Rules of an
absolute right to either an inter partes oral hearing, or, failing that, to a separate oral
hearing in every case is within the rule-making power in section 69(1). It is also
compatible with the Convention rights under Article 6, 8 and 10. Oral hearings
involving evidence or a consideration of the substantive merits of a claim or
complaint run the risk of breaching the [neither confirm nor deny] policy or other
aspects of national security and the public interest. It is necessary to provide
safeguards against that. The conferring of a discretion on the Tribunal to decide when
there should be oral hearings and what form they should take is a proportionate
response to the need for safeguards, against which the tribunal, as a judicial body, can
balance the Complainants' interests in a fair trial and open justice according to the
circumstances of the particular case.”
93. Regarding Rule 9(6) which stipulates that oral hearings must be held
in private, the IPT held:
“163. The language of rule 9(6) is clear and unqualified.
'The Tribunal's proceedings, including any oral hearings, shall be conducted in
private.'
164. The Tribunal are given no discretion in the matter. Rule 6(2)(a) stiffens the
strictness of the rule by providing that the Tribunal may not even disclose to the
Complainant or to any other person the fact that the Tribunal have held, or propose to
hold, a separate oral hearing under rule 9(4). The fact of an oral hearing is kept
private, even from the other party ...