Closed and Open Procedures

Procedures to enhance open justice

The Closed Material Procedures have been introduced in the civil courts in order to handle civil cases where the Government may need to rely on sensitive material to justify an executive action. As a judicial body handling similarly sensitive material, the Tribunal’s policies and procedures have been carefully developed and have evolved with the aim of balancing the principles of open justice for the complainant with a need to protect sensitive material. The approach of hearing a case on the basis of assumed facts has proved to be of great value.

Assumed facts: This means that, without making any finding on the substance of the complaint, where points of law arise the Tribunal may be prepared to assume for the sake of argument that the facts asserted by the claimant are true; and then, acting upon that assumption, decide whether they would constitute lawful or unlawful conduct. This has enabled hearings to take place in public with full adversarial argument as to whether the conduct alleged, if it had taken place, would have been lawful and proportionate. Exceptionally, and where necessary in the interests of public safety or national security, the Tribunal has sat in closed, or private, hearings with the assistance of Counsel to the Tribunal to ensure that points of law or other matters advanced by the complainants are considered.

Open 'Inter-Partes' Hearings or 'Open' hearings

Accordingly, during the course of investigating a complaint which could theoretically involve undisclosed sensitive material the Tribunal may decide to hold an oral hearing to consider points of law, such as occurred in 2008 in the case of Vincent Frank-Steiner v The Data Controller of SIS (IPT/06/81). As has been mentioned such hearings may be held on the basis of assumed, or agreed, facts.
There has been an important development of the Tribunal’s practices in this respect.  The original Investigatory Powers Tribunal Rules 2000 (No.2665) provide that:

  • Rule 9(2): Although the Tribunal "shall be under no duty to hold oral hearings … they may do so in accordance with this rule"
  • Rule 9(6) of which was clear and unqualified in this context, and outlined that 'The Tribunal's proceedings, including any oral hearings, shall be conducted in private.'
  • Rule 6(2)(a) went even further, to say that the Tribunal may not even disclose to the Complainant or to any other person the fact that the Tribunal has held, or propose to hold, a separate oral hearing under rule 9(4). The fact of an oral hearing was to be kept private, even from the other party. The Tribunal were originally given very little discretion in the matter.

However, in IPT/01/62 and IPT/01/77, the Complainants asked the Tribunal to hold the hearing in public and the Tribunal considered this and other points of law point as a preliminary issue. In a public hearing on 22 January 2003, the Tribunal concluded that the public, as well as the parties to the complaint, have a right to know that there is a dispute about the interpretation and validity of the law. This was the first time the Tribunal sat in public, and it decided that, subject to the general duty imposed by Rule 6 (1) to prevent the disclosure of sensitive information, it can exercise its discretion in favour of holding an open hearing:

“As no risk of prejudice to the NCND policy or to any other aspect of national security or the public interest is present, the Tribunal have decided to exercise their discretion under Section 68(1) of RIPA to allow the hearing to be made public by means of the transcripts and also to make public the reasons for their rulings on the legal issues argued”.

Commitment to Open Justice

Following this commitment to hold hearings in open when possible, the Tribunal has gone further and published its significant rulings on this [website LINK for Judgments page] providing that this runs no risk of disclosure of any information "to any extent, or in any manner that is contrary to or prejudicial" to the matters referred to in Section 69(6)(b) of RIPA and Rule 6(1) or to the NCND policy. The reasoned judgments are all on [our Judgments section LINK again to Judgments page] and reported by the British and Irish Legal Information Institute (Bailii) with official citation numbers, and a number can also be found reported in the Law Reports.

The Tribunal recognises the potential and sometimes highly sensitive conflict between the interests of complainants in securing all relevant information and, where they arise, concerns of national security and other public interests. A proper balance must be struck between them. It therefore remains within the power of the Tribunal to hold separate open and closed hearings, should the circumstances, including the nature of the material, require it to do so.

In the case of Kennedy v The United Kingdom (2010) 29 BHRC 341 ECtHR (IPT/01/62) these procedures, and in fact all the Tribunal's procedures, have been accepted by the European Court of Human Rights as ECHR-compliant


Last updated: 5 Jul 16