(2) Without prejudice to this general duty, but subject to paragraphs (3) and (4), the Tribunal
may not disclose to the complainant or to any other person:
(a) the fact that the Tribunal have held, or propose to hold, an oral hearing under rule 9(4);
(b) any information or document disclosed or provided to the Tribunal in the course of that
hearing, or the identity of any witness at that hearing;
(c) any information or document otherwise disclosed or provided to the Tribunal by any
person pursuant to section 68(6) of the Act (or provided voluntarily by a person specified in
section 68(7));
(d) any information or opinion provided to the Tribunal by a Commissioner pursuant to
section 68(2) of the Act;
(e) the fact that any information, document, identity or opinion has been disclosed or provided
in the circumstances mentioned in sub-paragraphs (b) to (d).
20. The power to hold closed hearings is contained in Rule 9 (4):
“The Tribunal may hold separate oral hearings (at) which:
(a) The person whose conduct is the subject of the complaint …
may be required to attend and at which that person or authority may make representations,
give evidence and call witnesses.”
21. The validity of the Rules was considered by the Tribunal in its ruling on 23rd January
2003 in the Kennedy case (IPT/01/62 and 01/77). At paragraph 175 reference was
made to rule 6 (2) and at paragraph 181 the Tribunal said this:
“The Tribunal conclude that these departures from the adversarial model are within the power
conferred on the Secretary of State by section 69 (1), as limited by section 69 (6). … In the
context of the factors set out in that provision and, in particular, the need to maintain the
NCND policy, the procedures laid down by the Rules provide a fair trial within Article 6 …”
22. The complainant in the Kennedy case complained to the European Court of Human
Rights against the final determination of the Tribunal, alleging breaches of article 8
(respect for private life and correspondence) and article 6 (right to fair trial). In a
unanimous ruling in Kennedy v. United Kingdom (2011) 52 EHRR 4) the Court
dismissed those complaints. In relation to Article 6 the Court considered, at
paragraphs 184 to 191, the aspects of the rules and procedures of the Tribunal which
distinguish it from the conventional adversarial process in a court, including Rule 6
(2). At paragraph 187 of its judgment the Court said:
“In respect of the rules limiting disclosure, the Court recalls that the entitlement to disclosure
of relevant evidence is not an absolute right. The interests of national security or the need to
keep secret methods of investigation of crime must be weighed against the general right to
adversarial proceedings. The Court notes that the prohibition on disclosure set out in r.6(2)
admits of exceptions, set out in r.6(3) and (4). Accordingly, the prohibition is not an absolute
one. The Court further observes that documents submitted to the IPT in respect of a specific
complaint, as well as details of any witnesses who have provided evidence, are likely to be
highly sensitive, particularly when viewed in light of the Government’s “neither confirm nor
deny” policy. The Court agrees with the Government that, in the circumstances, it was not
possible to disclose redacted documents or to appoint special advocates as these measures