BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
179
(iii) Overall conclusion
500. In respect of the complaints under Article 10 of the Convention, the
Court therefore finds a violation in respect of the section 8(4) regime and
the Chapter II regime.
IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
501. The applicants in the third of the joined cases further complained
under Article 6 of the Convention that the limitations inherent in the IPT
proceedings were disproportionate and impaired the very essence of their
right to a fair trial.
502. Article 6 provides, as relevant:
“1. In the determination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing within a reasonable time
by an independent and impartial tribunal established by law. Judgment shall be
pronounced publicly but the press and public may be excluded from all or part of the
trial in the interests of morals, public order or national security in a democratic
society, where the interests of juveniles or the protection of the private life of the
parties so require, or to the extent strictly necessary in the opinion of the court in
special circumstances where publicity would prejudice the interests of justice.”
503. In particular, the applicants contended that there was a lack of
independence and impartiality on the part of the IPT, evidenced by the fact
that in November 2007 there had been a secret meeting between it and the
Security Services which, they alleged, resulted in the adoption of a protocol
pursuant to which MI5 agreed not to search or disclose any bulk data
holdings relating to complainants; that they were not effectively represented
in the closed proceedings; that the IPT failed to require the defendants to
disclose key internal guidance; and that, following the hearing, the IPT had
made its determination in favour of the wrong party.
504. The Government submitted that Article 6 of the Convention did not
apply to surveillance proceedings, since the Commission and the Court had
consistently held that decisions authorising surveillance did not involve the
determination of “civil rights and obligations” within the meaning of
Article 6 § 1. They further contended that even if Article 6 did apply, when
the proceedings were taken as a whole the applicants could not be said to
have been denied the right to a fair trial. In particular, they observed that the
applicants did not have to overcome any evidential burden to apply to the
IPT; there was scrutiny of all the relevant material, open and closed, by the
IPT, which had full powers to obtain any material it considered necessary;
material was only withheld where the IPT was satisfied that there were
appropriate public interest and national security reasons for doing so; and
finally, the IPT appointed Counsel to the Tribunal who in practice
performed a similar function to that of a Special Advocate in closed material
proceedings. With regard to the meeting in 2007 between MI5 and the IPT,