56
KENNEDY v. THE UNITED KINGDOM JUDGMENT
to be sufficiently counterbalanced by the procedures followed by the
judicial authorities (citing Rowe and Davis v. the United Kingdom [GC],
no. 28901/95, § 61, ECHR 2000-II). Although the applicant appeared to
accept that the restrictions on the procedure before the IPT pursued the
legitimate aim of securing that information was not disclosed contrary to the
public interest, national security or the detection and prevention of serious
crime, he argued that they were not proportionate and impaired the very
essence of his right to a fair hearing. In particular, the applicant contended
that Rule 6(2) to (5) (restrictions on disclosure and evidence), Rule 9
(secrecy of proceedings) and section 68 RIPA together with Rule 13 (the
refusal to provide any reasons to unsuccessful complainants) were contrary
to the principle of equality of arms.
181. The applicant submitted that even where national security was at
stake, a domestic court could not infringe the fair hearing principle in a
blanket and uncritical manner. He argued that less restrictive measures were
available to achieve the aim pursued, including arrangements to protect
witnesses' identities, disclosure of documents with redactions approved by
the IPT, provision of a summary of particularly sensitive material under the
supervision of the IPT and appointment of special advocates to whom
disclosure of sensitive material could be made. He referred to a recent report
on secret evidence published in June 2009 by the non-governmental
organisation, JUSTICE, which called for the strengthening of disclosure
procedures and increased transparency in court proceedings.
182. The Government emphasised that even where Article 6 § 1 applied
to a field falling within the traditional sphere of public law, this did not in
itself determine how the various guarantees of Article 6 should be applied to
such disputes (citing Vilho Eskelinen and Others, cited above, § 64). The
obligation to read the Convention as a whole meant that the scope of the
Article 6 guarantees in such a case should be in harmony with the Court's
approach to judicial control under Article 8. The Government argued that
the overarching consideration was that an individual could not be notified of
interception measures while interception was ongoing or where notification
would jeopardise the capabilities or operations of intercepting agencies.
They therefore disputed that the less restrictive measures proposed by the
applicant were appropriate. They noted that protection of witnesses'
identities would not assist in keeping secret whether interception had
occurred. Nor would disclosure of redacted documents or summaries of
sensitive material. Further, unless they were appointed in every case, the
appointment of special advocates would also allow a complainant to draw
inferences about whether his communications had been intercepted.
183. The Government argued that the procedure before the IPT offered
as fair a procedure as could be achieved in the context of secret surveillance
powers. In particular, a complainant did not have to overcome any
evidential burden to apply to the IPT and any legal issues could be