Neutral Citation Number: [2025] UKIPTrib 13
Case Nos: IPT/24/466/CH & IPT/24/467/CH
IN THE INVESTIGATORY POWERS TRIBUNAL
Date: 12 December 2025
Before:
LADY CARMICHAEL (PRESIDENT)
LORD BOYD OF DUNCANSBY (VICE-PRESIDENT)
MR STEPHEN SHAW KC
Between:
Complainants
(1) MR VINCENT KEARNEY
(2) BRITISH BROADCASTING CORPORATION
-v-
Respondents
(1) CHIEF CONSTABLE OF THE POLICE SERVICE OF NORTHERN IRELAND
(2) CHIEF CONST ABLE OF DURHAM CONSTABULARY
(3) SECURITY SERVICE
(4) GOVERNMENT COMMUNICATIONS HEADQUARTERS
(5) SECRET ARY OF STATE FOR NORTHERN IRELAND
(6) SECRETARY OF STATE FOR THE HOME DEPARTMENT
(7) SECRETARY OF STATE FOR THE FOREIGN COMMONWEALTH AND DEVELOPMENT OFFICE
(8) COMMISSIONER OF POLICE OF THE METROPOLIS
Jude Bunting KC and Jonathan Scherbel-Ball (instructed by A&L Goodbody Northern Ireland LLP) appeared for the BBC and Vincent Kearney
Cathryn McGahey KC and David Reid (instructed by the Crown Solicitor’s Office Northern Ireland) appeared for the First and Fifth Respondent
Aaron Rathmell (instructed by Evolve Legal Services) appeared for the Second Respondent
Richard O’Brien KC and Andrew Byass (instructed by the Government Legal Department) appeared for the Third, Fourth, Sixth and Seventh Respondents
Jonathan Glasson KC and Rachel Toney appeared as Counsel to the Tribunal
Hearing date: 13 November 2025
Introduction
1. This is the judgment of the Tribunal.
2. By letter of 10 September 2025 (incorrectly dated 9 September), the Third Respondent made the following concession in respect of the First Claimant, Vincent Kearney.
“In 2006 and 2009 MI5 obtained communications data in relation to Vincent Kearney in connection with investigations into individuals suspected of making unauthorised disclosures to Mr Kearney, of national security information, in circumstances where those disclosures (and the risk of further unauthorised disclosures) had the potential to cause damage to national security.
The communications data was obtained by MI5 further to authorisations granted under, and in accordance with, RIPA 2000 and, in 2009, the applicable Communications Data (“CD“) Code.
In 2006 and 2009, respectively, MI5 was not required by any CD Code to apply a stricter test or more heightened scrutiny of the justification for accessing journalistic material. In that context, the authorisation for the acquisition of the communications data:
a. in 2006, did not make express reference to the fact that Mr Kearney was a journalist or that the purpose was to determine his journalistic source(s) and accordingly did not apply a stricter test or more heightened scrutiny of the justification for accessing journalistic material;
b. in 2009, though referencing the fact that Mr Kearney was a journalist, did not apply a stricter test or more heightened scrutiny of the justification for accessing journalistic material.
However, in News Group Newspapers Ltd v Metropolitan Police Commissioner [2015] UKIPTrib 14_ 176-H, the IPT ruled that adherence to the requirements of the RIPA and the 2007 CD Code of Practice was insufficient to meet the legal requirements of Article 10 ECHR because the Code did not apply a stricter test or more heightened scrutiny of the justification for accessing journalistic material. It is accordingly accepted that – whilst acting in good faith and in accordance with any Code of Practice applicable at the time – when obtaining Mr Kearney’s communications data in 2006 and 2009, MI5 breached Mr Kearney’s Article 8 and/or Article 10 ECHR rights.
Certain of the communications data obtained by MI5 in 2006 and 2009 were shared with the PSNI. It is further accepted that MI5 breached Mr Kearney’s Article 8 and/or Article 10 rights in circumstances where the data that was shared had been obtained in breach if those rights.
MI5 no longer retains the communications data originally obtained in relation to Mr Kearney in 2006 and 2009.
a. It was (and remains) standard practice (under an automated process) for such data to be deleted within a set period from the date of its acquisition and that period passed some years prior to the commencement of these proceedings.
b. No such originally obtained data was found when MI5 conducted its searches, for the purposes of these proceedings, and thus MI5 believes such data to have been deleted (consistently with its standard practice and automated process).
However, some references to (and extracts from) the communications data originally obtained have been retained by MI5, and MI5 now undertakes (following the conclusion of these proceedings) to destroy these.”
3. Following that concession, the Claimants sought further disclosure of material from the Third Respondent and to challenge their continued reliance on the principle of Neither Confirm Nor Deny (NCND). On 28 October 2025 the Third Respondent made a number of further disclosures in respect of the First Claimant by way of gisted summaries, by providing details of the headings/fields and detail of applications for communications data (CD) in 2006 and 2009, and details of spreadsheets and billing data.
4. The Claimants have made a number of points arising from the concession and subsequent disclosure. The applications in 2006 were said to be justified on the grounds of national security and related to an investigation into unauthorised disclosure of information. The express purpose was to identify journalistic sources yet did not identify the First Claimant as a journalist. It appeared that there had been ‘a number of authorisations’ which had been authorised. The disclosure provided ‘ significant’ detail of the application process. A request had apparently been made to “open a file in relation to Mr Kearney as an individual connected to a sensitive investigation” but there was no information as to whether this request had been granted. An application in 2009 was made, ‘‘for call-related data from Mr Kearney’s mobile number“. The Claimants note that the justification for the application was aimed at identifying the First Claimant’s confidential sources. The disclosure suggested that the Third Respondent were seeking data about “the A Party” and that this would “necessarily include B Party data“. (“A Party” is a reference to the person who is a person of interest, in this case, the First Claimant. “B Party” is a party to whom the First Claimant had communicated during the period in question on the phone number for which an authorisation had been applied for. It covers the CD relating to the B Party who has communicated with the First Claimant). Once again it was said that the disclosure revealed ‘significant’ detail about the application process. The Third Respondents held “two spreadsheets that record/reference Mr Kearney’s … call related data” including data relating to both incoming and outgoing calls. The Claimants suggest that the further disclosure amounts to a further and significant departure from NCND.
5. Paragraphs 21 and 22 of the Claimants skeleton argument makes the following points in relation to the Third Respondent disclosure.
21 “Although the further disclosures reveal significant detail about MI5 ‘s activities and application processes, they do not enable Mr Kearney or the BBC to understand: (a) how many applications were actually made, (b) what the applications were aimed at, (c) when they were made, (d) what time period they related to, (e) what time period of data M/5 obtained, (I) what data MI5 actually obtained in relation to Mr Kearney, or (g) what data MI5 retained in respect of Mr Kearney.
22 In addition, MI5 has also not confirmed whether: (a) there were further applications for access to Mr Kearney ‘s communications data (which it maintains were, in fact, lawfully made), (b) there were further applications for access to the communications data of the other BBC employees set out in the confidential schedule, or (c) there were further applications made more generally in respect of Mr Kearney and the other employees’ journalistic data.”
6. The Claimants invited the Tribunal to order further disclosure as respects the interferences with the First Claimant’s personal data, which also amounted to a breach of the Second Claimant’s (the BBC’s) article 10 rights. In particular they sought the further details set out in paragraphs 21 and 22 of their skeleton argument. This was required so that they could plead a case on impact and take remedial steps to protect their rights. They also sought details of any further interferences with the First Claimant’s personal data even if it was maintained that it was lawful and any other interferences with the personal and journalistic data of other names on the Second Claimant’s confidential schedule. The Claimants also requested that the Third Respondent set out an OPEN justification for the reliance on NCND in these proceedings.
The statutory framework
7. Section 68( 6) of the Regulation of Investigatory Powers Act 2000 (RIPA) imposes a duty on persons specified in subsection (7), which includes the Third Respondents, “to disclose or provide to the Tribunal all such documents and information as the Tribunal may require for the purpose of enabling them – (a) to exercise the jurisdiction conferred on them by section 65; … ”
8. Rule 7 of the Investigatory Powers Tribunal Rules 2018 (IPT rules), so far as relevant for these purposes, is in the following terms:
(1) The Tribunal must carry out their functions in such a way as to secure that information is not disclosed to an extent, or in a manner, that is contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime, the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence services.
(2) Without prejudice to this general duty, but subject to paragraphs (3) to (6), the Tribunal may not disclose to the complainant or to any other person other than Counsel to the Tribunal
a) …
b) any information or documents otherwise disclosed or provided to the Tribunal by any person pursuant of section 68(6) of the Act, or provided voluntarily by a person specified in section 68(7);
c) …
d) the fact that any information, document or opinion has been disclosed or provided in circumstances mentioned in sub-paragraphs (a) to (c);
e) …
(3) The Tribunal may disclose anything described in paragraph (2) with the consent of-
(a) in the case of sub-paragraphs (a) and (b), the person who disclosed or provided the information or document;
9. Section 68( 4) RIPA provides that where the Tribunal determine any proceedings it shall give notice to the complainant, confined to “either (a) a statement that they have made a determination in his favour; or (b) a statement that no determination has been made in his favour.” Rule 15(2) provides that “where they make a determination in favour of the complainant the Tribunal must provide the complainant and the respondent with the determination including any findings of fact.” This is subject to Rule 15( 6) which provides that the duty to provide information under the rule is in all cases subject to the general duty imposed by Rule 7(1). Furthermore, no information may be provided the disclosure of which may be restricted under rule 7(2) unless the person whose consent was needed for disclosure had been given the opportunity to make representations to the Tribunal.
10. There is no dispute about the principles applying to the law on NCND. From the authorities the following may be summarised. NCND is not a rule of law or a legal principle but a practice which has been adopted to safeguard the secrecy of the workings of the intelligence services; Al Fawwaz v Secretary of State for the Home Department [2015] EWHC 166 Admin at para 74; Secretary of State for Northern Ireland v Fee [2024] NICA 39 at para 32. It is for the court to determine whether the respondent’s insistence on NCND is rational: Al Fawwaz para 77. Consistency in the application of NCND is important as a departure from the principle in one case may give rise to inferences in other cases where no such departure has been made. These inferences may put agents in danger; Re Scappaticci (2003) NIQB 56 at para 15 or otherwise be damaging to national security (see, for example Frank-Steiner v Secret Intelligence Service IPT /06/81 /CH 26 February 2008 at para 4, where a consistent response was said to be important in the context of a question as to whether any documents did or did not exist). In Beth v Security Service [2024] UKIPTrib 3, it was said that the principle of NCND fundamentally relied upon the absolute consistency of its application; para 30.
11. Nevertheless, there are a few instances where there has been a departure from NCND.
In DIL v Metropolitan Police [2014] EWHC 2184 NCND was lifted in two instances where the state had already acknowledged that the two individuals were Covert Human Intelligence Sources (CHIS). In Al Fawwaz the court referenced the case of Abu Qatada where, in a deportation case before the Special Immigration Appeals Commission, he relied on the content of three interviews with MI5 which were confirmed and the contents disclosed into open proceedings (para 78). That example was said to provide an illustration of the flexibility of approach to NCND. Individual judgments are called for given the particular instances and legal context of the request for disclosure (para 79). In Scappaticci Carswell LCJ quoted the affidavit of Sir Joseph Pilling, then Permanent Under-Secretary of State at the Northern Ireland Office which stated, at paragraph 4 (para 6 of the judgment), that it was accepted within Government that the policy of NCND did not automatically trump every request for a comment on the identity of agents. It might be departed from in a particular case if there was an overriding reason to do so. He went on to comment, however, that the effectiveness of the policy is undermined if not applied consistently.
12. There is no dispute as to the standard of review. In Apple Inc v Secretary of State for the Home Department [2025] IPTrib 1 (Singh LJ, President and Johnson J) the Tribunal noted that the executive is entitled to take a precautionary approach when assessing risks to national security. The Tribunal continued, “Courts and Tribunals must accord particular weight to such assessments made by the executive. Those assessments should usually be accepted unless they are shown to be irrational or otherwise vitiated by public law error.” (para 28).
Submissions for Claimants
13. For the Claimants Mr Bunting KC reminded the Tribunal that the constitutional principle of open justice applied to all courts and tribunals. The Tribunal therefore had an inherent jurisdiction to determine what the principle required in terms of information placed before it, unless it is inconsistent with the statute or the rules of the Tribunal. These principles had been examined by the Tribunal in Various Claimants v Security Service and another [2023] 2 All ER 949, paras 71 – 79; [2022] UKIPTrib 3, and in Lee and another v Security Service (No 2) [2023] UKIPTrib 10; [2024] 4 All ER 510. The Tribunal permits and encourages OPEN hearings. That was one of the reasons why the European Court of Human Rights had assessed the Tribunal as providing an effective remedy; Big Brother Watch v United Kingdom (App. No’s 58170/13, 62322/14 and 24960/15) at para 257.
14. NCND is an exception to the presumption of an OPEN hearing. It was nevertheless accepted that the Tribunal was bound to accept the assessment of the Third Respondent unless it was irrational or otherwise vitiated by a public law error; Apple para 30. A conclusion would be irrational where it does not “follow from the evidence or there is an unexplained evidential gap or leap in reasoning which fails to justify the conclusion“; R(Wells) v Parole Board [2019] EWHC 2710 (Admin) at para 31.
15. The justification that was most often advanced for the maintenance of N CND was the need for consistency in application. In this case however there had already been a departure form NCND. The concession confirmed that the Third Respondent had interfered with the First Claimant’s personal data on at least two occasions. The Third Respondent had never explained why the concession had been made so late. They had not sought to justify their reliance on NCND. Insofar as they had sought to explain it there were logical gaps in the reasoning. The Third Respondent had applied NCND in an inconsistent and non-uniform manner in this case. They had confirmed significant details about the repeated interferences with the First Claimant’s personal data and about their application and approval process. It was difficult in the circumstances to understand why it would further damage national security to provide further disclosure about the interference in his personal data, or of other journalists on the confidential schedule.
16. The disclosures made about the events of 2006 and 2009 were deficient. They did not enable the Claimants to set out an informed case on the impact of the interference or to take any adequate or remedial steps to protect their rights. They did not know for how long such unlawful interferences may have been going on or the impact on friends or family. The concession was not compliant with the findings by the European Court of Human Rights in Kennedy v United Kingdom (2011) 52 EHRR 4, at paras 183 and 189, in which the court noted that if the complainant was successful a reasoned decision would be provided and that the “complainant is entitled to have information regarding the findings of fact in his case.” The concession was also inconsistent with the ruling of the Tribunal in Belhadj v Security Service [2015] UKIPTrib 13-132-H at para 19. It would undermine public confidence in the Tribunal if the details of a finding of illegality were to be determined by the public body which had acted unlawfully and withheld from the victims on the basis of a non-specific assertion of risk to national security.
17. Mr Bunting pointed out that, given the concession, the Tribunal would be bound to consider what remedies might be appropriate under section 67(7) RIPA, including the question of compensation. The requirement under rule 15 for a statement of findings of fact to be intimated to the parties along with the notice of determination was not only mandatory but was necessary to enable the Claimants to make representations about the amount of the award. This was inconsistent with the Tribunal’s ruling in Belhadj and procedurally unfair.
Submissions for Respondents
18. For the Third Respondent Mr O’Brien KC said that no further disclosure concerning the concession could be made without damaging national security. The Third Respondents had obtained CD in relation to the First Claimant in 2006 and 2009 in connection with investigations into individuals suspected of making unauthorised disclosures to the First Claimant of national security information, in circumstances where those disclosures (and the risk of further unauthorised disclosures) had the potential to cause damage to national security. To provide the further disclosure sought by the Claimants would reveal a level of detail about the timing and nature of the unauthorised disclosures that would in turn risk revealing inter alia, (i) what the unauthorised disclosures were and (ii) the nature of the MI5 investigation into those disclosures. That would be damaging for reasons that can only be fully explained in CLOSED.
19. The Third Respondent had taken steps to fulfil their obligations under section 68(6) RIPA and the IPT rules, pursuant to several orders of the Tribunal. The OPEN disclosure made to the Claimants was that agreed with Counsel to the Tribunal (CIT). Nothing else could be disclosed without damaging national security. There was no absolute principle that NCND could only rationally be maintained if it were applied uniformly and in all cases. There may be cases where a departure from NCND is appropriate. This had to be judged on a case by case basis. Indeed, the Third Respondents would be open to criticism if that was not done.
20. Insofar as it was said that the extent of disclosure that had been given to the Claimants did not fully enable them to present an informed case on remedy that was a consequence of the procedural regime by which disclosure may not be given where to do so would breach national security. It is not a reason to give further disclosure to the Claimants, even if to do so would cause that damage. It was wrong to say that the concession was not compliant with the findings in Kennedy or inconsistent with Belhadj. On the contrary, Beladj was authority for the proposition that the Tribunal, upon making a determination in favour of the complainant, remains constrained by the general duty in rule 7(1) (paras 21 and 22). This was integral to the ECtHR’s reasoning in Kennedy.
21. So far as disclosure to the Claimants not concerning the concession was concerned the Claimants were seeking the information set out in paragraph 22 of their skeleton argument. The Third Respondent neither confirm nor deny these matters. There is no reason to depart from NCND in relation to allegations, whether made by the First Claimant, or in respect of other BBC employees which have not been accepted as giving rise to unlawfulness.
22. The position of the Third Respondent was supported by the Second Respondents, Durham Police. Mr Rathmell submitted that while consistency was a virtue, and patently so when it came to NCND, it was not the only virtue. It was inherent in a case by case scrutiny that NCND may not be maintainable invariably with perfect consistency. A national security or law enforcement public authority should not be disadvantaged for making appropriate concessions. A respondent may be properly criticised for a blanket application of NCND. The subject matter in the present case was communications data, which may conceivably engage less urgent public interests in favour of consistency in the application of NCND than other examples such as covert human intelligence sources (see for example Scappaticci). A limited departure from NCND in connection with communications data access made many years ago may logically and safely be able to be made without undermining reliance on NCND in respect of other periods of time and/or other matters.
Discussion
23. The Tribunal is under a duty to carry out its functions in such a way as to secure that information is not disclosed to an extent, or in a manner, that is prejudicial to national security or, among other things, the continued discharge of the functions of any of the intelligence services; rule 7(1). That applies at all stages of the proceedings before the Tribunal, including the duty to give reasons or findings in fact along with a notice of determination under rule 15; see rule 15(6); Lee para 16. In Belhadj Burton J, the then President, noted that NCND may have a role to play in the giving or abbreviating, of the reasons or information to be supplied after the making of a determination in the complainant’s favour, as rule 6(1) (now rule 7(1)) will apply to precisely what information can be given (para 21 ).
24. The statutory framework, including the rules, within which the Tribunal operates is one which is very different from that which governs ordinary civil proceedings; Various Claimants para 76. It is one which has nevertheless been found to be consistent with ECHR. In Kennedy the ECtHR emphasised that the extent to which the duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (para 189). It concluded that the restrictions on the procedure before the IPT did not violate the applicant’s right to a fair trial (para 190). The Grand Chamber of the ECtHR has held that the Tribunal’s procedures provide a robust and effective judicial remedy; Big Brother Watch v UK (2022) 74 EHRR 17 at paras 413 -415, 467.
25. The rationale for NCND was discussed by Keegan LCJ in Secretary of State for Northern Ireland v Fee. At paragraph 32 she said;
“The core rationale for the policy of Neither Confirm Nor Deny (“NCND”) which is discussed in the case is the need to protect national security. It has, for example, been the policy of successive governments to neither confirm nor deny whether the security and intelligence agencies are investigating or hold information on a particular person or group. The policy has developed to include protection for the confidentiality of operations, methods, capabilities, intelligence gathering and the use of sources and to protect the life of sources and their families.”
26. NCND is, however, not a rule oflaw or legal principle but a practice designed to protect national security and the operation of the intelligence services and law enforcement agencies; Al Fawwaz, para 74. The practice is justified insofar as these interests are protected. This calls for a case by case analysis in which the risks to national security can be assessed and, where appropriate, NCND applied. Individual judgments are called for given the particular circumstances and the legal context for disclosure. It is a flexible approach; Al Fawwaz, para 79. As the affidavit of Sir Joseph Pilling quoted in Scappaticci demonstrates this is understood by Government.
27. There is no absolute principle that NCND must be applied consistently and uniformly in all cases. Indeed, such a principle would run counter to the intention behind the practice as it might mean that it was applied even in cases where an intelligence service concluded that a disclosure could safely be made without compromising national security. As Mr Rathmell pointed out in his skeleton argument a national security public authority should not be disadvantaged unduly for making appropriate concessions. If that were the case the result may be that such an authority would feel inhibited from making appropriate disclosures and concessions. Such an approach might adversely affect the efficient working of the Tribunal and would be contrary to the principle of open justice.
28. It is for the Tribunal to determine whether reliance on NCND is justified. In approaching this task we must give due weight to the assessment of the respondents. We are bound to accept their conclusion unless we conclude that it is irrational or otherwise vitiated by a public law error; Apple para 30. For the foregoing reasons the Tribunal is not persuaded that continued reliance on NCND is irrational. Nor is it vitiated by any other error oflaw. We give further reasons in CLOSED.
29. Given the concession the Claimants are correct that whatever the Tribunal may determine in respect of any other matters, the Tribunal will have to address the question of remedy; s.67(7) RIP A. The Claimants submit that further disclosure is required to allow them to understand the full nature of the unlawful interference in their ECHR rights. That will enable them, they submit, to provide evidence of the specific impact of the interference with their rights on them and make informed submissions in respect of remedy.
30. This is an inevitable result of the Tribunal’s rules. As noted above the Tribunal’s duty under rule 7(1) applies throughout the proceedings including the determination and any remedies. The fact that there will inevitably be a determination in favour of the First Claimant, given the concession, cannot be elevated into a reason to order further disclosure or a departure from NCND, where to do so would breach rule 7(1). Nor are we satisfied that the Claimants would be substantially prejudiced by being unable to advance submissions or evidence at the remedy stage. Compensation is only one of the remedies available to the Tribunal and, without prejudging the issue, may not be the most important or significant. In any event the Tribunal will be, as it has been throughout the proceedings, assisted by CIT.
31. Finally Mr Bunting contended that the public interest was firmly in favour of further disclosure and failure to order disclosure risked damaging public confidence in the Tribunal. We reject such an assertion. On the contrary public confidence in the Tribunal would rightly be at risk if the Tribunal failed to follow the law, including its own rules.
The disclosure statement
32. Paragraph 3 of the CLOSED Annex to the Tribunal’s Order dated 17 September 2025 required the Third Respondent to serve a “disclosure statement” confirming that they had complied with their statutory duties under s 68( 6) RIP A and their duty of candour and cooperation with the Tribunal. The statement, dated 9 October 2025, was served on the Tribunal in CLOSED. Following discussion with CIT an OPEN version was disclosed to the Claimants. Substantial parts of the OPEN statement were redacted and in other places a gist was provided. The OPEN statement was disclosed shortly before the hearing and after the due date for submissions.
33. The statement was made by a lawyer employed by the Third Respondent who was the lawyer advising in relation to these proceedings. It states:
3 “The matters set out in this statement are true to the best of my belief Where the matters set out in this statement rely upon documents either produced for
these proceedings or held by Mf 5, I set this out. In making this statement I have relied on information provided to me by the wider team of MI5 officers
who have been involved in this case, in particular members of the […] team and the […] team. […].
4 I confirm at the outset that I believe that Mf 5 has complied with its statutory duties under s. 68(6) of the Regulation of Investigatory Powers Act 2000 and its duty of candour and co-operation with the Tribunal. MI5 has devoted a very significant amount of resources to undertaking searches in this matter, in order to identify all documents that are relevant to the claims that are made in this matter. It has undertaken both electronic and hardcopy searches, including in relation to events that occurred many years ago, and at all times has sought to address requests made by Counsel to the Tribunal (“CTT”) as fully and as frankly as possible.
5 In this statement I describe the reasonable and proportionate searches carried out. In particular, I explain below the steps that MI5 has taken to provide initial disclosure in these matters, the further searches and disclosure that MI5 has undertaken and provided at its own initiative, and the further searches and disclosure MI5 has provided in response to requests from CTT.”
34. In oral submissions Mr Bunting suggested that the statement was not in conformity with the guidance given in respect of corporate witness statements by the Divisional Court (Baroness Carr of Walton-on-the Hill LCJ, Dame Sharp, President of the King’s Bench Division and Chamberlain J) in Attorney General v BBC [2025] EWHC 1669 (KB). In response Mr O’Brien submitted that what had been produced was a disclosure statement, rather than a corporate witness statement. It was made by the lawyer responsible for the litigation who was bound by their own professional duties and obligations.
35. In AG v BBC the Divisional Court had to consider a witness statement produced by a senior officer of MI5 which was admittedly inaccurate in material respects. The court commented that evidence given on behalf of a government department or agency is often given in the form of a corporate witness statement. While this could be a convenient way to present an “institutional view” it had its dangers. The court went on the endorse the guidance given in the Practice Directions in the Civil Procedure Rules, CPR 32 PD para 18.2. This provides that a witness statement must indicate (1) which of the statements in it are made from the witness’s own knowledge and which are matters of information or belief and (2) the source for any matters of information or belief (see paras 97 – 106).
36. The Tribunal has not had an opportunity before now to consider all of the possible implications of the Divisional Court’s judgment for its own practice. The CPR Practice Directions do not apply to the Tribunal but it may be that in due course the Tribunal will want to consider whether similar guidance should be given for its own practice. It may also wish to consider whether there is any difference between a “corporate witness statement” and a “disclosure statement” as suggested by Mr O’ Brien. This, however, raises wider issues of practice which will require full argument and engages wider considerations. One of these, which occurs to us, is the certificate which is signed by an individual on behalf of the organisation making a return to a direction under section 68(6), commonly called a search direction. That certificate states that the signatory is authorised to make the return, that he has carried out all appropriate and relevant investigations, that so far as he is aware there is no other relevant material or information beyond that attached, that he has no reason to believe the material or information is incorrect or incomplete and that he is unaware of the existence of any other relevant material held by any other organisation. That declaration is signed on behalf of the organisation. It does not describe the steps taken to discharge the duty.
37. It is also well to remember that the Tribunal has the power under section 68(2) RIPA to require the Investigatory Powers Commissioner to provide the Tribunal with such assistance as the Tribunal think fit. That can include instructing an inspection of the relevant offices to determine whether there is other material which has not been disclosed to the Tribunal. In other words, the Tribunal has powers to ensure compliance with an order under section 68(2) that is not available to the ordinary courts.
38. It is not necessary for the Tribunal to consider whether the disclosure statement accords with the guidance in AG v BBC. The issue for us is whether we are satisfied that the Third Respondent have complied with their duty under section 68(6) RIPA and their obligation of candour and cooperation to the Tribunal. We note the disclosure statement was produced following an order of the Tribunal because the Tribunal wanted to be satisfied as to the steps taken by the Third Respondents to fulfil their obligations in this case. Secondly, the statement was made by a lawyer who is involved in the litigation himself. Thirdly the statement, which in OPEN runs to five pages, describes the various stages of the disclosure process and the searches that have been undertaken. The Tribunal has had the benefit of considering the full statement in CLOSED together with CLOSED material. For these reasons, together with the reasons given in CLOSED, we are satisfied that the Third Respondents have discharged their duty of candour and cooperation and complied with their obligation under section 68(6) RIPA.
39. In both written and oral submissions Mr Bunting complained that the concession was made very late. No good reason had been given for the delay in making the concession. In reply in both OPEN and CLOSED Mr O’Brien explained the reasons for the timing. Nothing of substance turns on this complaint and we say no more about it.