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IPT hands down judgments on Article 6(1) ECHR, AF (No.3) disclosure, the operation of rule 7 and open justice

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The Investigator Powers Tribunal has handed down two judgments in relation to important preliminary issues of law in the case of Christine Lee & Daniel Wilkes -v- Security Service [2023] UKIPTrib 8 and Christine Lee & Daniel Wilkes -v- Security Service [2023] UKIPTrib 10.

Jonathan Glasson KC and Jesse Nicholls acted as Counsel to the Tribunal in respect of both judgments. The case arises from a Security Service Interference Alert (IA) issued in January 2022 by the Security Service to the Parliamentary Security Director of the UK Parliament. The IA asserted that Ms Lee had engaged in the facilitation of donations to political parties, Parliamentarians and others, and that her activities had been affiliated with the Chinese state. The Claimants allege that the issuing of the IA has breached various of their Convention rights.

 

Christine Lee & Daniel Wilkes -v- Security Service [2023] UKIPTrib 8

On 22 September 2023, the Tribunal (Singh LJ (President); Lord Boyd of Duncansby (Vice-President); Judge Rupert Jones) handed down judgment in respect of two issues of law:

  1. Whether Article 6(1) ECHR applies to these proceedings; and
  2. If so, whether OPEN disclosure is required of the essential elements of the Respondent’s case in accordance with the decision of the House of Lords in Secretary of State for the Home Department v AF (No. 3) [2009] UKHL 28, [2010] 2 AC 269 (AF (No.3)).

On the first issue, the Tribunal concluded that it was not necessary to reach a final conclusion. The crucial question was whether, even assuming that Article 6(1) ECHR does apply to these proceedings, it requires the minimum disclosure to the Claimants which would be required if the principles in AF (No. 3) are applicable.

On that second issue, the Tribunal concluded that the authorities indicate that the situations in which AF (No. 3) disclosure has been required have certain features. Those features are summarised at §39: coercive measures which are directly imposed and serious restrictions on a person’s freedom of action; the measures are imposed by the executive; the measures are continuing, not in the past; and the nature of the proceedings (whether by way of appeal or otherwise) is a challenge to those measures, with a view to having them lifted or modified. The Tribunal concluded that none of those features was relevant to the present claims. Even if Article 6(1) were applicable to the proceedings, the Tribunal was satisfied that its usual procedures are capable of dealing with the claims fairly and there is no need for AF (No. 3) disclosure to achieve fairness in the case (§40).

Christine Lee & Daniel Wilkes -v- Security Service [2023] UKIPTrib 10

On 24 November 2023, the Tribunal (Singh LJ (President); Judge Rupert Jones) handed down judgment in respect of the Claimants’ application for the Tribunal’s permission to disclose certain documents to Special Advocates in separate proceedings, brought by two applicants known as C17 and C18, which are taking place before the Special Immigration Appeals Commission.

The Tribunal considered the application of rule 7 of the Investigatory Powers Tribunal Rules 2018 at different stages of IPT proceedings:

  1. Where a complaint has been issued and the Respondent has disclosed and/or provided the Tribunal with information and/or documents pursuant to section 68(6) of the Regulation of Investigatory Powers Act 2000 (RIPA), the Respondent may refuse to consent to the disclosure of documents or information to a complainant or a third party. A refusal to consent to disclosure to the complainant may result in procedural consequences following the exercise of the Tribunal’s discretion in rule 7(4)-(7). A refusal to consent to disclosure to a third party, however, would not have those consequences (§33).
  2. Where the Respondent has consented to disclosure of information and/or documents to the complainant, it is for the Tribunal to determine any application by the complainant for collateral use or an application by a third party for access, taking into account any submissions from the Respondent and mindful of the Tribunal’s duty in rule 7(1) (§§34-35). At this second stage, the Respondent has no entitlement or ‘veto’ to refuse to consent to disclosure under rule 7.
  3. Where an open hearing has taken place at which there has been relevant reference to information and/or documents, the Tribunal must conduct a “fact-specific” exercise in accordance with the principles of open justice set out by the Supreme Court in Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38; [2020] AC 629 (summarised at §§18-21 of the IPT’s judgment). In applying those principles to the specific context of the Tribunal, the IPT must comply with the provisions of rule 7(1) in particular, fortified by the common law principle requiring cogent and persuasive reasons for disclosure to a non-party, but must also seek to implement the principle of open justice so far as it is possible to do so (§§56, 68). Since one of the purposes of the open justice principle is to enable the public to understand how the justice system works and why decisions are taken, even where they have not been referred to during the hearing, the Tribunal may consider that access to information or material will further the open justice principle and this must be weighed in the balancing exercise (§35). As well as the open justice assessment, there must also be a fairness assessment (§68). The Tribunal rejected the submission made at one time on behalf of the Respondent that, in effect, it had an absolute ‘veto’ on the provision of access to information and/or documents at stage 3 (§55).

Applying the stage 3 principles to the application, the Tribunal rejected the application save to a limited extent (§§69, 78-82).

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