Abstract
The Tribunal established to investigate complaints about phone-tapping and the activities of the intelligence agencies has, at its first ever public hearing, quashed rules made by the Home Secretary forcing the tribunal to hold all its hearings in secret. However, the Tribunal procedure remains too secret, and its decisions cannot be appealed. Malcolm Kennedy’s complaint of interference with his telecommunications is one of those proceeding before the Tribunal. In a new development that could, in theory, ultimately lead to the safety of his earlier conviction for manslaughter being reexamined, a new search for witnesses who knew Patrick Quinn before his violent death in December 1990 has been initiated.
Introduction
Articles in Lobsters 39, 41, 43 have discussed Malcolm Kennedy’s case.
Kennedy served four and a half years of a nine year prison sentence after being found guilty of manslaughter of Patrick Quinn in May 1994. Quinn, an Irishman, had been found dead, with severe injuries, in a police cell at Hammersmith Police Station on the night of December 23/24 1990, after first Quinn, and then Kennedy had been separately arrested for drunkenness and put in the same cell. Kennedy’s conviction came after three trials and an appeal. Concerns were expressed at the time about the safety of Kennedy’s conviction: questions were asked in Parliament, an Early Day Motion was signed by 65 MPs, and Hackney Community Defence Association published a booklet about the case, Who Killed Patrick Quinn? The Framing of Malcolm Kennedy.(1)
After his release from prison in June 1996, Kennedy set up his own business doing small moves in North London, but says that his communications have been subjected to continual interference. In particular, Kennedy says that incoming calls from his local area, on which his business depends, are being blocked to a greater or lesser extent, and that he gets many ‘spoof’ calls which waste his time but don’t lead to work. He says this has got worse in the last year since the Investigatory Powers Tribunal hearings started, and that he is now facing financial ruin.
The Investigatory Powers Tribunal
Backed by Liberty, Kennedy has taken his complaint concerning interference with his communications to the Investigatory Powers Tribunal (IPT). The Tribunal was established under s65 Regulation of Investigatory Powers Act 2000, which lays down the rules governing interception of communications, acquisition and disclosure of communications data, and surveillance. It is the only body that can hear complaints relating to conduct by the intelligence and security agencies, and complaints about phone-tapping, and is also the only appropriate Tribunal for the purpose of certain proceedings under s7(1)(a) of the Human Rights Act 1998: claims that a public authority has acted in a manner that is incompatible with a Convention right.
The Challenge to the Tribunal Rules
However, prior to Kennedy’s complaint being heard by the Tribunal, Liberty is challenging the Tribunal’s rules and procedures, (2) claiming that these are not compatible with the Human Rights Act 1998 (HRA) and the European Convention on Human Rights (ECHR) and do not permit a fair and open hearing. This has delayed the hearing of Kennedy’s complaints. Liberty is representing two cases involved with this challenge, both of which involve complaints of unlawful interception of telephone communications by the state.
In Kennedy’s case the agencies alleged to be involved are the Security Service, GCHQ and the Metropolitan Police. This interception is alleged to be continuing in violation of the Convention right to respect for private life and correspondence, guaranteed by Article 8 ECHR.
The second case concerns Liberty itself, in conjunction with the Irish Council for Civil Liberties (www.iccl.ie) and British-Irish Rights Watch (www.birw.org), who believe their phone and fax communications between Britain and Ireland, including confidential legally-privileged material are being routinely intercepted by GCHQ and processed by the security and intelligence services. Communications between Britain and Ireland were intercepted via an MOD installation at Capenhurst in Cheshire and later, it is claimed, by the Echelon system. The rights groups say that RIPA fails to provide adequate safeguards to protect individual privacy, a principle enshrined in the HRA and ECHR. (3)
In a separate case, these three organisations are taking the government to the European Court of Human Rights over the same allegations of interception, which they claim breach Article 8 ECHR, the right to privacy.(4) The groups say that the Interception of Communications Act 1985 (which governed interception of communications prior to Regulation of Investigatory Powers Act (RIPA) coming into force on October 2 2000) violates Article 8 ECHR. IOCA allowed for the interception of all material passing through a communications link, regardless of whether it came within the scope of a warrant, and lacked sufficient safeguards to protect the right to privacy of people who were not the interception targets. It is claimed that indiscriminate eavesdropping is continuing, in contravention of Article 8 ECHR.
First Public Hearing
Liberty’s challenge to the Tribunal’s rules and procedures led to the first oral hearings of this secretive tribunal, in July and August 2002; and the Tribunal’s first public hearing on January 23 2003, when its ruling on the preliminary issues concerning the procedure of the Tribunal was handed down by the Tribunal President Lord Justice Mummery, and its Vice President Mr Justice Burton. These were minor landmarks: neither this tribunal nor its predecessors had ever sat in public before.
The Tribunal are in no doubt as to the significance of these cases, and stated in their 85 page judgment that ‘the challenge to rule 9(6) and to most of the other rules governing the basic procedures of the Tribunal have made this the most significant case ever to come before the Tribunal. The Tribunal are left in no doubt that their rulings on the legal issues formulated by the parties have potentially important consequences for dealing with and determining these and future proceedings and complaints.’
Claimants say some Rules not compatible with Convention rights
Liberty’s main challenges to the Tribunal’s Rules concern disclosure of information (rule 6) and the form and openness of the tribunal hearings (rule 9). Rule 6(1) states that ‘the Tribunal shall 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.’ (Rule 6(1) reflects RIPA s69(6)(b), referred to later)
Rule 6 goes on to state that the Tribunal must not disclose to the complainant or to any other person: ‘the fact that the Tribunal have held, or propose to hold, an oral hearing under rule 9(4)’ (except with the consent of the person required to attend the hearing) or ‘any information or document disclosed or provided to the Tribunal in the course of that hearing, or the identity of any witness at that hearing’ (except with the consent of the witness or the person who disclosed or provided the information or document). Nor may the Tribunal disclose any information provided to it by a Commissioner, except with the consent of the Commissioner in question. (5)
Rule 9 concerns forms of hearings. Rules 9(3) and 9(4) provide for separate oral hearings at which the complainant and the person or public authority (e.g. intelligence agency or police) whose conduct is subject to the complaint, can make representations. Rule 9(6) states that ‘The Tribunal’s proceedings, including any oral hearings, shall be conducted in private.’
Rules 11 and 13 were also challenged. Rule 11 concerns evidence, and rule 11(3) states that ‘No person shall be compelled to give evidence at an oral hearing under rule 9(3)’. The complainants considered that the Tribunal should be able to decide for itself whether fairness requires disclosure of information and documents and the compelling of a witness to give oral evidence.
Rule 13(2) states that where the Tribunal makes a determination in favour of a complainant, the Tribunal shall provide him or her with a summary of that determination, including any findings of fact. Where the determination is not in favour of the complainant, there is no such duty other than to notify the complainant of this fact. The Complainants claimed that the provisions in rule 13 were incompatible with the Convention right to a fair trial, which includes the right to a reasoned judgement given in public.
These Rules require procedures which depart from normal adversarial practice and procedure followed by courts and tribunals in the determination of civil rights, where, for example, all documentary evidence is mutually disclosed and available; evidence and submissions on behalf of parties are heard in the presence of all parties or their legal representatives; evidence is subject to cross examination by or on behalf of the opposite party; and the giving of evidence may be compelled.
The Complainants submitted that these departures from normal adversarial procedure resulted in an ‘inequality of arms’ that was incompatible with Convention rights, and that the offending rules were incompatible with Convention rights, and prevented the Tribunal from making their own assessments of what was necessary and proportionate.
The Complainants asked the Tribunal to give directions that all hearings be conducted in public; that evidence on behalf of the Complainant be heard by the Tribunal in the presence of the Respondents, or their legal representatives, and vice versa, and oral evidence should be subject to cross examination; that there be mutual disclosure between the parties of witness statements and documentary evidence on which each party wishes to rely; that opinion or representation received from a Commissioner under RIPA s68(2) shall be disclosed to the parties; and that each party may apply for a derogation from any of the above in relation to any information or evidence. The complainants also asked that when giving their final determination in the case they state their findings and give reasons for their conclusions.
Article 6 ECHR applies to claims and complaints made to the Tribunal
Article 6(1) of the European Convention on Human Rights states that: ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security…’
Whether or not Article 6(1) applied to both the complaints of telephone interception made under RIPA s65(2)(b) and the claims under the HRA as to the compatibility of the Tribunal Rules, under RIPA s65(2)(a), specifically whether the matters raised involve ‘civil rights’ within the meaning of Article 6(1), were key issues disputed by the parties.
The Complainants contend that their proceedings involve the determination of civil rights within the meaning of Article 6(1) and therefore that they are entitled to a fair and public hearing, guaranteed under Article 6, and in accordance with the procedural requirements associated with the right to respect for private life in Article 8 and the right to freedom of expression under Article 10. The exercise of these rights is qualified, in Articles 8(2) and 10(2), in the interests of national security, public safety, prevention of disorder or crime, etc.
The Tribunal concluded that Article 6 does apply to HRA claims under s65(2)(a) and to complaints under s65(2)(b) of RIPA, as each involves ‘the determination of civil rights’ by the Tribunal within the meaning of Article 6(1)
This was an important ruling for Liberty, who argued that Article 8, the right to privacy, creates a new civil right for the purposes of Article 6, and that this means that the Tribunal procedure is unlawful. John Wadham, Director of Liberty, said, ‘It is an important issue irrespective of the Tribunal process. The importance of the case goes well beyond that because it is about establishing some real substance to Article 8, the right to privacy, including the fact that Article 6 applies to it.’
But the Tribunal ruled that ‘the Rules do not contain procedural requirements which, in the context of the interception of communications and secret surveillance and the need to maintain the NCND [Neither Confirm Nor Deny] policy, are incompatible with article 8’; and that the Rules preventing the complainants, or others, from gaining access to sensitive information, documents or evidence in the hands of the security and intelligence services are compatible with Article 10 because these Rules ‘are necessary in the interests of national security and, in particular, for the maintenance of the NCND policy and they are a proportionate interference under Article 10(2).’
Tribunal Procedure should be compatible with Convention rights
The complainants contended that the Tribunal, as a ‘public authority’ within the Human Rights Act 1998 s6(1), must conduct the proceedings compatibly with Articles 6, 8 and 10 of the ECHR. HRA s3(1) says that legislation must be read and given effect in a way that is compatible with Convention rights, as far as it is possible to do so. Therefore, the complainants say that the Tribunal must interpret RIPA and the Rules compatibly with Articles 6, 8 and 10; and if it is not possible to read a provision in the Rules as compatible with Convention rights of fairness and openness, then it is ultra vires, and the Tribunal is entitled to exercise their discretion under s68(1) to conduct the proceedings under a procedure which is compatible with Convention rights. RIPA s 68 (1) states that the Tribunal is entitled to determine its own procedure in relation to complaints subject to any rules made under s69 (IPT rules were made under s69 [1]).
NCND (Neither Confirm Nor Deny) Policy
The Tribunal recognised the potential conflict of interest between the interests of the complainants in securing maximum information and openness in the consideration and determination of their complaints, and, on the other hand, the interests of national security and other public interests served by the NCND policy, and stated: ‘A proper balance must be struck between them.’ (6)
The Complainants did not challenge the NCND policy as such, and accepted that it is a legitimate policy in relation to the use of investigatory powers, but contended that it does not justify the absolute blanket nature of the Rules, nor the scale of the departure, in RIPA and the Rules, from the Convention and common law requirements of a fair trial and public hearing of their claims and complaints.
Tribunal Rules provide a ‘fair trial’ and are compatible with the ECHR
But the Tribunal concluded that the departures from normal adversarial procedure which the Rules require (see above) are within the power conferred on the Secretary of State by RIPA s69(1), and
‘…a reasonable rule-making body, having regard to the mandatory factors in s69(6), could properly conclude that these departures were necessary and proportionate for the purposes stated in s69(6)(b). In the context of the factors set out in that provision, and, in particular, the need to maintain the NCND policy, the procedures laid down in the Rules provide a “fair trial” within Article 6 for the determination of the civil rights and obligations arising in claims and complaints under s65 of RIPA. They are also compatible with Convention rights in Articles 8 and 10, taking account of the exceptions for the public interest and national security in Articles 8(2) and 10(2), in particular the effective operation of the legitimate policy of NCND in relation to the use of investigatory powers. The disclosure of information is not an absolute right where there are competing interests, such as national security considerations…’
On oral hearings, for example, the Tribunal say that the absence from the Rules of an absolute right to either an inter partes oral hearing, or, failing that, to a separate oral hearing in every case, is within the rule-making power of s69(1) and compatible with Convention rights under Article 6, 8 and 10: oral hearings involving evidence or a consideration of the substantive merits of a claim or complaint:
‘…run the risk of breaching the NCND policy or other aspects of national security or the public interest. It is necessary to provide safeguards against that. The conferring of a discretion on the Tribunal to decide when there should be oral hearings and what form they should take is a proportionate response to the need for safeguards…’
On the issue of determinations:
‘the Tribunal are satisfied that section 68(4) and rule 13 are valid and binding and the distinction between information given to the successful complainants and that given to unsuccessful complainants (where the NCND policy must be preserved) is necessary and justifiable.’
This did not extend to legal rulings on preliminary issues: ‘in the circumstances there can be publication of the reasons for legal rulings on preliminary issues.’
The Tribunal concluded that, with the exception of Rule 9(6) the Rules, properly interpreted, are valid and binding on the Tribunal, and are compatible with Articles 6, 8 and 10 of the Convention.
Preliminary Issues can be Conducted in Public
However, on the challenge to rule 9(6), which states that the Tribunal’s proceedings, including any oral hearings, shall be conducted in private, the Tribunal considered that its blanket nature, preventing any hearing of the proceedings in public, goes beyond what is authorised by s69 RIPA, and they ruled that there was ‘no conceivable ground’ for requiring that the preliminary hearings, consisting purely of legal argument on points of procedural law, arising on the interpretation and validity of the Rules, be held in private. Purely legal arguments did not involve the risk of disclosing sensitive information:
‘The legal arguments have been deployed, debated and decided in this case without disclosing any factual information at all, or anything from which any facts may be inferred about the occurrence or non-occurrence of interception or surveillance. There is no question of either confirming or denying any fact or allegation of fact in breach of NCND policy. Indeed, purely legal arguments, conducted for the sole purpose of ascertaining what is the law and not involving the risk of disclosure of any sensitive information, should be heard in public…The result is that rule 9(6) is ultra vires section 69. It does not bind the Tribunal…The transcripts of the hearing should be made available for public consumption.’
The Tribunal concluded that it could exercise its discretion, under RIPA s68(1), in only 3 relevant areas of procedure:
- by holding an oral hearing of the preliminary issues in the presence of all the parties;
- by directing that the oral hearing of the legal argument on the preliminary issues should be treated as being held in public (therefore the transcripts should be released);
- by directing that the reasons for the rulings on the preliminary issues should be given in public
That procedure, states the Tribunal, runs no risk of disclosure of any information ‘that is contrary to or prejudicial to the matters referred to in RIPA s69(6)(b) and rule 6(1) or to the NCND policy. It is also compatible with Convention rights.’
This meant that the late application made to the Tribunal by Guardian Newspapers Limited (GNL), who asked that the Tribunal’s preliminary proceedings should not be conducted in private, except where necessary in the interests of national security or the public interest, and that they should be allowed to be reported, was successful. (7) The effect of the judgement is that in future cases before the Tribunal, arguments that deal with procedural and legal matters will be public, but those that deal with substantive facts will remain secret.
A small but significant change
This judgement has brought about a small but significant shift towards more openness in the proceedings of this secretive tribunal. John Wadham said:
‘This was the first ever case where there was a hearing, the first case were there was a public judgement, and this will have a very significant effect on the way the Tribunal works. What the consequences of that will be for individuals isn’t so clear.’
In practice, there remains a clear ‘inequality of arms’ between complainants and respondents before the Tribunal. For example, there is no right for the claimants to see arguments and evidence submitted by the respondent organisations (e.g. the intelligence agencies or police); nor do claimants have a right to see representations by Commissioners. Most hearings will remain separate, with no right for the claimant’s representative to cross-examine witnesses, nor may witnesses be compelled to give evidence. And all hearings dealing with substantive allegations factual matters raised by a claim or complaint – will still be heard in secret.
No Appeal; rulings form the procedural foundation for the Tribunal
Decisions of the Tribunal cannot be appealed: Under RIPA s67(8) the determinations and decisions of the Tribunal ‘shall not be subject to appeal or be liable to be questioned in any court.’ Subject to further submissions from the parties, the Tribunal will proceed to deal with the claims and complaints of the Complainants in accordance with the normal procedure. Only after these complaints have been determined by the Tribunal will Liberty decide whether to take the case, in whole or in part, to the European Court at Strasbourg.
Post script: new evidence in Kennedy’s case
In a separate development, possible new evidence has emerged in recent months which could have an important bearing on Kennedy’s original case. A man who knew about Kennedy’s case has come forward and told Kennedy that several years ago he worked with a man (named Brendan) who told him he had known Patrick Quinn and that Quinn had frequently clashed with the police in the Hammersmith, Fulham and Shepherd’s Bush areas in the late 1980s. At the time of Kennedy’s trial the police apparently denied having known or having had any previous dealings with Quinn. As this information could be significant, a witness search has been launched to try and find people, including ‘Brendan’, who may be able to substantiate this. With sufficient evidence, especially if it included documentary evidence, there is a possibility that Kennedy’s original case could be reopened. This could only happen if there was enough evidence for the case to be referred to the Criminal Cases Review Commission, which investigates suspected miscarriages of justice, and which would decide whether the case was strong enough to be referred back to the Court of Appeal.
Kennedy says that, since the search for new witnesses has started, he has experienced greater disruption to his communications/telephones. The few telephone calls he does get are not genuine enquiries, and he is now scarcely getting any work at all, despite increasing his advertising. He also reports that sometimes the ringer facility on his phone doesn’t work, and he sometimes has picked up the telephone to make a call and found someone on the line. He has also experienced a lot of computer problems and says that e-mails often disappear from his computer, despite having up-to-date anti-virus software, and e-mail address details get altered. Kennedy says that a retired senior police officer told him that units within the Met, SO10 (covert ops) and SO11 (gathering, collating and analysing intelligence on criminal activity), do this sort of thing; but that they only do it to ‘targets’ such as serious criminals. Kennedy speculates that he may be being targeted because of his former case and that somehow a warrant has been maintained on him over the years.
Kennedy now has so little work that his business is in jeopardy, and he faces serious financial difficulties if things do not change. He believes the reasons for this harassment and disruption are several. In particular, Kennedy believes there is concern within the police that the mystery surrounding Quinn’s violent death could be reinvestigated should new witnesses come forward, and that this may explain the increased disruption that he is experiencing. Kennedy suggests that for this reason he may be considered a liability, and the constant harassment may be an attempt to keep him struggling to survive financially, and so to discourage him from pursuing his case, and trying to prove his innocence.
Kennedy is not, however, discouraged. He knows that pursuing these matters after all this time will upset a few people, but he says, ‘What more can they do to me?’
Notes
1 Links to this and other information about the case are at < www.red-star-research.org.uk/malcolm.html >.
2 Since its inception in October 2000, the Tribunal, like its predecessors, (the Interception of Communications, Security Service and Intelligence Services tribunals), has never upheld a complaint. The Interception of Communications Commissioner, Sir Swinton Thomas, in his most recent report, states that the Tribunal received 102 applications from its formation in October 2000 until the end of December 2001, and completed the investigation of 71 of these during 2001 See < www.official-documents.co.uk/document/deps/hc/ hc1243/1243.pdf >.
3 Details at www.hmso.gov.uk/si/si2000/20002665.htm
4See The Guardian 17 August 2001, ”Rights Groups challenge Telecom Spies’ at
< www.guardian.co.uk/uk_news/story/0,3604,538067,00.html >.
5 See The Guardian 31 May 2000, ‘Government Tapping of Phone Calls between UK and Ireland Challenged’ < www.guardian.co.uk/ uk_news /story/0,3604,326400,00.html >.
6 The IPT has the power to require a relevant Commissioner, eg the Interception of Communications or Intelligence Services Commissioners, to provide assistance to the Tribunal.
7The NCND policy, which is intended to safeguard national security, the functioning of the intelligence services and the identity of informants, (para 151), is invoked when questions are raised about interception and surveillance on the grounds that, without such a policy, complainants might infer whether, for example, such surveillance was taking place.