conduct is not arbitrary, but rational and proportionate.
(3) The Tribunal must consider the context in which interference with
the Convention right is alleged to have occurred. That involves
consideration of the nature of the materials involved, the special and
serious duties of the Security Service, the extent and impact of the
interference, the force of the countervailing rights and interests of
others and the extent of the positive obligations on the part of the
State to provide effective protection for the individual against
arbitrary interference with respect for private life.
37. The Complainant is right to remind the Tribunal of the relevance of the
unique character of its jurisdiction and of its special responsibilities in
scrutinising the conduct of those alleged to have interfered with the right
conferred by Article 8, usually without the benefit of the normal adversarial
procedures of the judicial process as a guarantee of fairness The Tribunal
is a judicial body which fully appreciates the importance of its not allowing
the plea of national security to be used by public authorities as an
unjustified shield against the independent scrutiny which the Tribunal was
established to conduct.
(2) If relevant data are not held
38. In this case, Article 8 does not apply j as we have found, and the test as
to the appropriateness of the NCND response is one simply of judicial
review on rationality principles. There is no need for any additional
"intensity", both