Open and closed proceedings

The Tribunal may decide to hold a hearing particularly where difficult issues of fact or law arise. Hearings may be held wholly or partly in closed (private without the complainant present). The Tribunal will sit in open when possible and only sit in closed when strictly necessary.

When the Tribunal was first established it sat in private. However, in 2003 the Tribunal decided that, in accordance with the principle of open justice it should, where possible, sit in public. More information about this judgment can be found here.

That position is now enshrined in Rule 10 of the Tribunal Rules which allows for a hearing in public or in private, in whole or in part. The Rule specifies that so far as consistent with the general duty on disclosure of information in Rule 7 the Tribunal should sit in public and in the presence of the complainant.

Where the Tribunal sits in closed session, Counsel to the Tribunal will assist the Tribunal to ensure that points of law or other matters that may have been advanced by the complainants are fully considered.

One of the approaches the Tribunal can take is to run hearings on the basis of assumed facts.

This means that:

• without making any finding on the substance of a complaint, where points of law arise the Tribunal may be prepared to assume, for the sake of argument, that the facts the complainant asserts are true;
• then, acting upon that assumption, the Tribunal decides whether these asserted facts would constitute lawful or unlawful conduct.

This has allowed the Tribunal to hold hearings in public with full adversarial argument as to whether the alleged conduct, if it had taken place, would have been lawful and proportionate.