crime, the economic well-being of the United Kingdom or the continued discharge of
the functions of any of the intelligence interests”. In the context of this case the
relevant factors which are particularly required to be secured by the Tribunal are
those of national security and the proper functioning of the intelligence agencies. For
shorthand those factors are referred to in this judgment below simply as security and
intelligence interests.
6. The particular issue which has given rise to this judgment relates to the form in
which certain documents have been disclosed by the Respondents to the Claimants.
Certain documents have been disclosed not by way of redacted copies, showing the
placing and scale of redactions made, but by way of giving the gist of some
information or producing retyped versions which give relevant text from the
underlying document, to the extent that information can properly be disclosed
without prejudicing security and intelligence interests. That form of disclosure has
been used by the intelligence agencies in other proceedings (see R (Maya Evans) v
Secretary [2013] EWHC 3068 (Admin)).
7. Miss Rose QC argues that disclosure of a copy of a relevant redacted document,
rather than disclosure by way of summary or retyping, is required as a matter of
principle, as an aspect of the best evidence rule. She referred us to the judgment of
Sedley LJ in R (National Association of Health Stores v Department of Health)
[2005] EWCA Civ 154 at paragraphs 47 – 49.
8. It is important to note the differences between this Tribunal and the High Court, and
the nature of the issue for which disclosure is required in this case. Rule 6 of the
Rules has already been referred to. Under Rule 11 the Tribunal may receive any
evidence in any form, and there no rules for disclosure, still less as to the form in
which any disclosure made should be provided. But most importantly this Tribunal
has the power, not available to the High Court, itself to obtain documents and
information from the intelligence agencies under section 68 (6) and to scrutinise such
documents and information for the purpose of exercising its functions, including
deciding how proceedings may fairly be determined.
9. In this case disclosure is being made for a limited purpose, namely to allow the
preliminary issue to be properly heard and determined. The purpose of the
Respondents providing information is to establish the precedent facts, as to the legal
and policy regime operated during the material time by the Respondents in relation
to legally privileged material. The disclosure is not required, as in general civil
litigation, to enable a party to pursue a train of enquiry, assess the authenticity of a
document or as the basis for cross-examination. For those reasons we do not consider
that the best evidence rule, as articulated by Sedley LJ at paragraph 49 of the Health
Stores judgment is applicable at this stage of these proceedings, particularly as the
Tribunal has the power to inspect the original document, if and when required, to