Open Justice, ‘NCND’, Investigatory Powers Tribunal practice and procedure and witness statements (Kearney and BBC v Security Service)
Public Law analysis: Rule 7(1) of the Investigatory Powers Tribunal Rules 2018 requires the Investigatory Powers Tribunal 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. The role of ‘Neither Confirm Nor Deny’ (NCND) may play a role in achieving this. This application of NCND is case sensitive but the state’s assessment of likely damage caused if departed from will be accepted unless irrational or otherwise vitiated on public law grounds. The IPT is subject to its own rules, not the civil procedural rules but would reflect on observations provided by the High Court on the form and content of witness statements prepared on behalf of public authorities. Written by Simon McKay, barrister England, Wales and Northern Ireland.