British Civilian Internees v. Secretary of State for Defence [2003] EWCA
Civ 473 at paragraphs 32-37.
36. We glean from the authorities the following general guidance which will be
relevant to the Tribunal's consideration of the justification available under Article
8(2) for the Respondent's conduct:
(1) Where there has been interference with a Convention right the
principles of proportionality will apply and it will be necessary to weigh and
balance different relevant interests. Judicial review principles will
generally require a more exacting standard of review than in other cases
traditionally reviewed on the Wednesbury unreasonableness approach of
considering the range of decisions available to a reasonable decision
maker. A variety of epithets are used to convey the same cautionary
concern about the appropriate standard of review to be applied:
"rigorous", "intrusive", " greater intensity" "heightened scrutiny" and
"precise and sophisticated." The message is clear enough.
(2) It will not norrhally be sufficient for the Respondent simply to assert to the
Tribunal in general terms that the interests of national security justify the
holding, use or withholding of personal data or the giving of the NCND
response to a subject data request. The Respondent must address the
facts and context of the particular case and satisfy the Tribunal that its