Belhadj & Others v the Security Service & Others

IPT/13/132-9/H

The Claimants issued applications on the basis that there might have been (and for the purpose of an open hearing were assumed to have been) interception by the Respondents of their legally privileged information (“LPP”). After disclosure by the Respondents in the proceedings of their previously unpublished procedures for dealing with intercepted LPP, and upon the concession by the Respondents just prior to a five-day fixed hearing, the Tribunal made the following Orders:

    "UPON the Respondents conceding that from January 2010, the regime for the interception/obtaining, analysis, use, disclosure and destruction of legally privileged material has not been in accordance with the law for the purposes of Article 8(2) of the ECHR and was accordingly unlawful;

    "AND UPON the Security Services and GCHQ confirming that they will work in the forthcoming weeks to view their policies and procedures in the light of the [new] draft Interception Code of Practice and otherwise:

    "IT IS ORDERED that there be a declaration that since January 2010 the regime for the Interception/obtaining, analysis, use, disclosure and destruction of legally privileged material has contravened Article 8 GCHR, and was accordingly unlawful”.

The Tribunal then held both a closed hearing to consider whether there had in fact been interception of the Claimants’ LPP and an open hearing to consider the consequences if such were the case; and on the same day they published (i) their reasoned judgment in respect of the submissions made by the parties at the open hearing, and (ii) their open determination of the result of the closed hearing in the light of those conclusions.

The Tribunal concluded, contrary to the Respondents’ submissions, that it would undermine public confidence in the Tribunal if its findings that there had been unlawful conduct by the SIAs were not made public. The Respondents had argued that it would be possible for the Tribunal to find in favour of the Complainants, and yet make a ‘no-determination’ finding. The Tribunal disagreed. It determined that there had been a breach of the Article 8 rights of one of the Complainants, in respect of two documents. It directed, subject to the terms of its order, that these should be destroyed, but did not award any compensation. The Tribunal further ordered that these findings should be made public.

Judgment dated : 29 Apr 15

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