B & Ors, R (on the application of) v Investigatory Powers Tribunal

Introduction

1. This is the judgment of the court after a ‘rolled-up’ hearing of the Claimants’ application for permission to apply for judicial review of a ‘decision’ of the Investigatory Powers Tribunal (‘the IPT’), and, if permission is granted, of their application for judicial review. For convenience, we will refer to the subject of this challenge as ‘the Decision’.

2. The Claimants brought proceedings in the Administrative Court and in the IPT challenging search warrants and surveillance. Those proceedings led to the quashing of search warrants and an order for the destruction of the products of unlawful surveillance. Later, on 7 June 2019, they applied for judicial review of a decision of Her Majesty’s Revenue and Customs (‘HMRC’). We will refer to that litigation as ‘the claim’. In the course of the claim, Swift J (“the Judge”) ordered the parties to ask the IPT some questions. The Decision contains the IPT’s answers to those questions.

3. On this application the claimants were represented by Ms Kilroy KC and Mr Casella. The IPT did not appear and was not represented. HMRC are the Interested Party. HMRC resist the application for judicial review. HMRC were represented by Mr Fletcher. We thank counsel for their helpful skeleton arguments and for their informative oral submissions.

4. At the start of the hearing we granted the Claimants’ application that the hearing and our judgment should be given in private. HMRC did not oppose that application.

5. The Claimant’s application for judicial review of the Decision raises issues of general significance about the relationship between the privacy protections granted by the IPT in proceedings which have ended, and the principle of open justice which applies in the Administrative Court, but which may be affected by those privacy protections. We would therefore give the Claimants permission to apply for judicial review.

6. We would nevertheless dismiss the application for judicial review of the Decision for two linked reasons. First, we do not consider that the effect of the Decision is such as to make it amenable to judicial review. Second, on the facts of this case, even if the Decision is amenable to judicial review, it would not be a good use of the court’s resources to make judicial review available in this case. The best forum for litigating these issues is the Administrative Court, which is the court which has jurisdiction over the claim and is poised (if that is the right word) to decide the issues which are the subject of this claim. The background to the Decision

7. As the IPT explained in the Decision, the background is explained in paragraphs 1-6 of the IPT’s ruling (‘the Ruling’). In a (relatively) recent case, this court had quashed search warrants issued and executed against the Claimants’ business premises and home. The IPT also issued a decision quashing authorisations, and an approval for property interference.

8. Later proceedings in the IPT, in which HMRC was an Interested Party, were held in private at the request of the Claimants (initially under rule 9 of the Investigatory Powers Tribunal Rules 2000 (SI 2000/2665), and then under the replacement provisions, the Investigatory Powers Tribunal Rules 2018 (SI 2018/1334). They resulted in a decision of the IPT dated 25 September 2019 which was handed down in private. The Claimants also brought proceedings against in the IPT against HMRC (as an interested party) which were based upon breaches of orders made against the NCA in 2015 and 2016 (‘Order 1’ and ‘Order 2’). Those proceedings resulted in orders in 2018 and 2019 (‘Order 3’ and ‘Order 4’), and in decisions dated 25 September and 9 December 2019 (‘Decision 1’ and ‘Decision 2’). Decisions 1 and 2 were also handed down in private.

9. Some of the Claimants then brought separate proceedings in the Administrative Court in which they challenged HMRC’s decision. We have already referred to this as ‘the claim’. Their case was that HMRC had relied on information which the NCA had obtained in the course of its unlawful activities. It is common ground that proceedings in the claim are currently governed by an order of Supperstone J (‘the Privacy Order’). Paragraph 11 of the Privacy Order provides that all proceedings in the claim, ‘including future hearings, are to remain in private and all documentation referred to will not be published or listed on the Court record’.

10. On 10 March 2023, HMRC wrote to the IPT asking for permission to rely, in the Administrative Court, on the IPT’s Decision 1. The Claimants did not object, as long as there were appropriate protections for confidentiality. They argued that HMRC should apply for permission for the parties to rely on all the documents disclosed in the IPT proceedings.

11. The President of the IPT required the Claimants to submit a list of the documents on which they proposed to rely in the claim. They submitted two lists (‘the Lists’). In its ruling of 18 April 2023 (‘Decision 3’), the IPT gave the parties permission to rely on and cite the Decision 1, and subject to appropriate protections, the documents in the Lists. Until that point, the claim had been heard in private.

12. The Judge then decided that he wished to consider whether some or all of the claim could be heard in public. On 23 November 2023, he made Order 5. In Order 5, the Judge asked the IPT for its opinion on whether neither the existence nor content of Decision 1, Decision 2, and Orders 1-4 could be referred to in a public hearing or in a publicly available judgment, despite, in short, various aspects of the dispute already being in the public domain (question A). He asked similar questions about the Lists (question B). He also asked, if there was no general prohibition on publication, whether or not there was any specific prohibition affecting individual documents or parts of documents in the Lists (question C). Order 5 was in the bundle for this hearing, and was quoted in full by the IPT in paragraph 1 of the Decision.

13. The Claimants appealed against Order 5. Falk LJ refused permission to appeal in Order 6. The IPT’s ruling on jurisdiction on 10 June 2024

14. The IPT gave the parties an opportunity to make submissions on its jurisdiction to answer the questions asked by the Judge. It recorded those submissions in paragraphs 8-9 of the Ruling. It accepted that its jurisdiction was entirely statutory and that it has no inherent jurisdiction. It quoted paragraph 41 of the judgment of the Supreme Court in Dring v Cape Intermediate Holdings Limited [2019] UKSC 38 ; [2019] AC 629 and referred to paragraphs 42-50. The IPT was not yet functus officio, to the extent that its orders have continuing effect. It therefore had jurisdiction to consider whether its privacy orders should continue or be modified. The principle of open justice required the IPT to keep such orders under review.

15. If it had that jurisdiction, then it also had jurisdiction to ‘clarify the status’ of judgments and orders which had been made by the IPT, and of other materials which had been put before it, ‘particularly in response to a request from another court or tribunal’. There was a public interest in its having such a jurisdiction. If it did not, there was a danger that the protections conferred by the IPT’s rules would be diluted (paragraph 15).

16. The IPT added that it was ‘difficult properly to distinguish questions about the effect of [the IPT’s] existing orders from questions about whether those orders should be modified or discharged’. The IPT considered that it should have a further oral hearing, in fairness to the Claimants (paragraph 16). The Decision

17. The IPT recorded the parties’ submissions in paragraphs 4-7 and 8-12.

18. The Claimant’s position was that the IPT should not revisit its previous orders, particularly when no-one was asking it to do so. The justifications for the orders continued, as the public judgments showed that the Claimants’ property had been searched. Those actions were unlawful, but had caused continuing adverse effects on the Claimants’ business. As a result, the IPT, at the Claimants’ request, had asked for privacy for Decision 1. If that were revisited, there was a risk that the consequences which the privacy order was designed to avert would materialise. The answer to the Judge’s questions should be that the judgments and rulings of the IPT which were delivered in private could not be referred to in public, and the same applied to the documents in the Lists.

19. HMRC submitted that in the claim the Claimants had themselves relied on the earlier proceedings. HMRC had sought to rebut their allegations by relying on Decision 1, which found that HMRC had ‘conducted a proper and compliant exercise to trace and quarantine any produce of unlawful authorisations’. HMRC relied on the principle of open justice. There could be no risk to the Claimants’ privacy from references to judgments or decisions which were already public. There was no general prohibition on the use of documents in the claim which had been used in the IPT proceedings. The fact that the documents had been used in private proceedings did not decide whether or not they could be referred to in public in the claim. Whether they could or should be would be for the Administrative Court to decide. Similar reasoning applied to documents which were referred to during the private hearing in the IPT. Cases of doubt should be left to the Administrative Court to decide.

20. The IPT emphasised three points.

1. The Claimants’ names and the fact of the unlawful surveillance are already in the public domain as the result of a public judgment of the Divisional Court and a public decision of the IPT.

2. The relevant ‘privacy protections’ flowed from an order recorded in paragraph 47 of Decision 1 that the relevant hearing should take place in private. Having held a private hearing, the IPT gave the judgment in private, and ordered that it should not be published and would not be published on the IPT’s website.

3. The IPT had not been asked to modify its order, and, in the circumstances, did not consider it appropriate to do so of its own motion. The first issue was to decide the effect of the IPT’s decision to hold the hearing which led to Decision 1 in private.

21. The IPT also emphasised the importance of the principle of open justice. A facet of that principle is that courts sit in public. Anything which is said in a public hearing may be reported, unless a reporting restriction has been imposed. Reporting restrictions work like injunctions contra mundum. Anyone who breaches them is guilty of contempt of court. It is therefore important that the terms of such restrictions are clear. If material is subject to a restriction imposed by one court, another court in separate proceedings will try to give effect to, rather than to undermine, that restriction.

22. An order or direction that a court or tribunal sits in private ‘governs who may attend a hearing’. It excludes the press and the public from a hearing. It follows that the press cannot report on the hearing, because they were not present at it. But such an order does not itself prohibit reporting of what was discussed at the hearing. A separate reporting restriction is necessary ( AF Noonan Limited v Bournemouth and Boscombe ACFC Limited [2007] EWCA Civ 848 ; 1 WLR 2616) (‘ Noonan ’). If the press find out about something which was discussed at a private hearing, they are free to report it unless a separate restriction is imposed. There might be an express or implied obligation of confidence, which is a different type of restriction. A breach of that would not be punishable in the same way as a contempt of court.

23. The IPT had decided that there was a compelling reason for holding the hearing which led to Decision 1 in private. That of itself did not impose a reporting restriction on the fact of the hearing or on the fact that Decision 1 had been made. The IPT’s decision that Decision 1 should not be published would ‘no doubt be undermined if the Administrative Court were to decide to publish it…but no-one appears to have suggested publication in that form. Subject to that, no order or direction of [the IPT] prevents the disclosure of the content of’ the Decision.

24. That was not to say that the considerations which persuaded the IPT to have a private hearing and to issue a private judgment were irrelevant to the extent if any of a private hearing in the Administrative Court or the contents of any public judgment. As the IPT said: ‘In our judgment, however, that is a matter for the Administrative Court to determine, evaluating and balancing the damage which it is said that disclosure would bring against the public interest in open justice in the particular context of the judicial review proceedings which the [Claimants] have decided to bring’ (paragraph 21).

25. The IPT’s answer to question A (see paragraph 12, above) was that in its ‘view’, it was for the Administrative Court to decide ‘whether and to what extent the existence and/or content of the rulings referred to in question A can be referred to in a public hearing or public judgment’.

26. The IPT noted that in Decision 3 the President of the IPT had given HMRC permission to rely on and to cite Decision 1 (which had been given in private) and had given the Claimants permission to cite other documents disclosed in the IPT proceedings. The IPT had done so on ‘the agreed footing’ that the proceedings in the Administrative Court ‘were currently being held in private’ (paragraph 1 of Decision 3). The President’s view was that the Administrative Court should have access to all the documents. He had added (in paragraph 8 of Decision 3) that it would for the Administrative Court to decide to what extent it was necessary to refer to the documents in order to deal with the case fairly, and that the Administrative Court was better placed to make that assessment than the IPT. The President had ‘no doubt that the Administrative Court will ensure that appropriate arrangements are made for preservation of confidentiality where that is required’. That was consistent with the IPT’s approach to answering question A. The imposition of ‘confidentiality protections’ in respect of the documents which were the subject of Decision 3 ‘is a matter for the Administrative Court’. There was no express or implied assumption that the proceedings in the Administrative Court would ‘always remain in private’. Everyone understood, not that the proceedings in the Administrative Court would always be in private, but that that was the position which was ‘current’ then.

27. The IPT considered that the Administrative Court was ‘better placed than we are to weigh up the matters relied upon in support of the claim for confidentiality against the public interest in open justice…not least because it will have a better understanding of the issues in those proceedings, the extent to which the [Claimants] have put the contents of the documents in issue by bringing the claim and the extent to which any relevant parts of the documents are already substantially in the public domain as a result of other proceedings’.

28. It followed that the answer to questions B and C (see paragraph 12, above) was that ‘it is a matter for the Administrative Court to determine whether and if so to what extent the documents or their contents can be referred to in a public hearing or public judgment’.

29. The IPT prepared a public version of the Decision and put it on the IPT website. A note at the foot of title page says, ‘This is public version of a judgment handed down in private. It has been modified to maintain the anonymity of the Complainants’. In this version of the Decision, the Claimants are anonymised. Very little has been redacted or modified, apart from the references to the earlier litigation from which the Claimants might be identified. The Claimants’ submissions

30. The Claimants submit that the IPT’s answers to the questions are wrong in law. The Claimants rely, in particular, on four main arguments.

1. Noonan does not decide that a separate reporting restriction is required to prohibit the publication of a judgment given in private. All it decided was that publication of what had happened in a private hearing was not a contempt of court. The court left open whether there were other remedies for unauthorised disclosure or publication.

2. Noonan strongly indicates that there is a prohibition on publication. While it is not express, it may be enforceable by other means. The IPT did not ask for submissions on Noonan , which the parties had not relied on in their arguments to the IPT.

3. The IPT was wrong to suggest that an action for breach of confidence was the only remedy for disclosure of information from a private hearing. An injunction, including from the court concerned, might be available.

4. The IPT was wrong to suggest that its ruling on privacy would only be undermined if Decision 1 were published in full or that the Administrative Court was better placed than it was to decide whether the Claimants should benefit from the privacy ruling in the proceedings in the Administrative Court. The Claimants relied on six further arguments in support of that proposition. a. The IPT has exclusive statutory jurisdiction over complaints and human rights claims relating to the use of covert powers, which has implications for the principle of open justice ( Lee Wilkes v Security Service [2024] 4 All ER 510 ). b. The IPT granted the Claimants’ application for privacy (ie a private hearing) in the context of their evidence and a special statutory framework which does not apply to the Administrative Court. c. The IPT decided not to revisit that ruling in Decision 1. d. That ruling would be ‘as much undermined’ if the content of Decision 1 ‘were published in full nor is it in any case clear what the distinction is’. e. The Claimants have a reasonable expectation that having got the ruling, which has not been appealed, revoked or varied, they were and are entitled to rely on it’. f. The Claimants having got a ruling that ‘the proceedings they brought before the IPT be conducted in private, they are entitled to rely on that ruling before other Courts without it being effectively varied or revoked by those courts.

31. In her able oral submissions Ms Kilroy expressed some further concerns about the Decision. She submitted that parts of the reasoning of the IPT were ambiguous, or not clear enough, for example, a passage in paragraph 20 of the Decision. She contended that the IPT’s answers were not sufficient. She expressed a worry that the route for challenging the Decision was not clear. She expressed a further concern that if the Claimants did not challenge the Decision by applying for judicial review, they would be unable to challenge it later in the Administrative Court, because such a challenge would be a collateral challenge to the Decision. The Decision had been published on the website, and might have implications for other cases.

32. In her oral submissions, Ms Kilroy also made nine frank concessions. All those concessions were rightly made, in the proper discharge of her duties to the court.

1. She accepted that the claims in the IPT and in the claim in the Administrative Court were different and that they raised separate considerations. She submitted, however, that they were ‘inextricably intertwined’.

2. She accepted that in making a decision about whether and if so to what extent the proceedings should be private, the Administrative Court would be engaged in a different exercise from the IPT when it decided about privacy in its proceedings. Her proviso, similarly, was that the Administrative Court’s task would be difficult because the issues were all linked.

3. She accepted that the Administrative Court could in principle re-visit the Privacy Order (which provides that all proceedings in the claim should be in private). She submitted that the relevant test was not met, however (see Tibbles v SIG Plc [2012] EWCA Civ 518 ; [2012] 1 WLR 2591 ).

4. She accepted that the question whether and if so to what extent the proceedings in the Administrative Court should be in private was for the Administrative Court and not for the IPT.

5. She accepted that the Judge would not be bound by the reasoning of the IPT when he considered whether, and/or the extent to which, the proceedings in the claim should continue to be in private, and that he could, in principle, re-visit those questions. She nevertheless suggested that the Administrative Court was likely to be influenced by the reasoning of the IPT in the Decision, unless there was a challenge to its validity, that is, by a successful application for judicial review of the Decision.

6. She accepted that her clients could and would put all the available arguments to the Administrative Court when it considers whether or not, and if not, to what extent, to continue the Privacy Order.

7. She accepted that if the Administrative Court erred in law in its decision about privacy in the claim ‘a’ route to challenge that error would be an appeal to the Court of Appeal.

8. She accepted that if the IPT had said, in paragraph 20 of the Decision, that it was for the Administrative Court to decide what the implications of its order were for the Administrative Court proceedings, (1) that would not be controversial and (2) ‘We would not be here’.

9. Her primary submission was that the hearing of the claim should stay private. If that submission was rejected, she accepted that there could, in theory, be a compromise which would respect the privacy of the IPT proceedings while allowing as much of the Administrative Court proceedings to be in public as was possible consistently with that respect. Discussion

33. The Claimants’ principal concern is that the claim should not be conducted in a way which exposes them to the reputational risk which materialised as a result of the execution of the unlawful search warrants and the unlawful surveillance, and the publicity which resulted. Part of that concern is that, even though there are two relevant judgments which are public, that reputational risk will revive if the claim is linked publicly with that earlier litigation, and with the Claimants. That concern is reinforced by the possibility that all the material which was before the IPT in the later litigation, and the IPT’s decisions, which were considered in private hearings and private judgments, could become public in the claim.

34. The nub of the Decision is that it is for the Administrative Court to manage its own proceedings, and to decide for itself the extent to which its proceedings should be in private, or otherwise protect the privacy interests of the Claimants.

35. We will not express any view on the merits of the Claimants’ challenges to the reasoning in the Decision, for two reasons. First, we can reach a decision on this application without doing so. Second, there is an inevitable and significant overlap between the Claimants’ arguments about the merits of the reasoning in the Decision, and the arguments on which they will rely in order to persuade the Administrative Court to continue to hold proceedings in the claim in private. That overlap means that if this court can avoid expressing any such view, it should do so.

36. It is common ground that the jurisdiction and powers of the Administrative Court and of the IPT are different. Rule 7 of the Investigatory Powers Tribunal Rules 2018 (2018 SI No 1334) is a significant qualification of the principle of open justice and does not apply to the Administrative Court. The IPT has a defined statutory jurisdiction which does not include jurisdiction to decide anything about proceedings in the Administrative Court proceedings. Any views it were to express about what privacy protections might be appropriate in proceedings in the Administrative Court would and could have no effect on the Claimants’ legal position.

37. As we have said, the Claimants’ concession that it is for the Administrative Court to decide what, if any, privacy protections are necessary in the claim and are consistent with the principle of open justice is plainly correct. Once that it is accepted, it follows that it is for the Administrative Court to decide all the issues which are relevant to the Claimants’ claim for privacy in the claim, including the Claimants’ primary contention that the privacy of the documents used in and generated by the proceedings in the IPT is absolute.

38. The IPT’s existing privacy order has not been affected by the Decision, as is clear from the IPT’s reasoning. So the Decision has had no effect on that aspect of the Claimants’ legal position. The Claimants correctly conceded that the Administrative Court is not bound by the IPT’s answers to the questions. The fact that the Administrative Court is not bound by the IPT’s views means that those views do not and cannot change the Claimants’ rights in any way, or have any other effect on the Claimants’ legal position.

39. We reject the submission that the Administrative Court will be ‘influenced’ by the IPT’s answers, if that submission is intended to suggest that the Decision has some legally relevant effects. First, the IPT is subordinate to the jurisdiction of the High Court. Indeed, it is that very jurisdiction which the Claimants have invoked in this application for judicial review of the Decision. The Administrative Court is not subordinate to the IPT. Second, once it is accepted that the Administrative Court it not bound by the answers, it follows that it is for the Administrative Court to make its own decision about what privacy protections, if any, are appropriate in the claim. The Administrative Court, having asked the questions, will no doubt take the answers into account as relevant considerations, but no more than that. That is not in any way unlawful.

40. The considerations we have described in the two previous paragraphs mean that the Decision is not amenable to judicial review.

41. If that is wrong, the next question is whether, on the unusual facts of this case, this court should make the remedy of judicial review available in its discretion. Three considerations, in particular, show that it should not do so.

42. First, if, contrary to our primary view, the Decision has any effect on the Claimant’s rights, that effect is vestigial.

43. Second, the Claimants can put all their arguments to the Administrative Court in the claim, with the added benefit of an opportunity to argue that Noonan is irrelevant to the issues, an opportunity which, they say, they were denied in the IPT.

44. Third, the Administrative Court is much better placed than the IPT, or this court on an application for judicial review of the Decision, to anchor the arguments about privacy in the detail of the claim. The Administrative Court is fully familiar with the claim (in contrast to the IPT, and to this court on this application for judicial review). In other words, the Administrative Court, not this court, is the suitable (and indeed, the only) forum for the resolution of those issues. It will be for the Administrative Court, having heard argument, to design the protections which are appropriate for the interests which are at stake in the claim, consistently with the principle of open justice. If the Administrative Court’s approach to privacy is wrong, the Claimants can then appeal to the Court of Appeal, with the benefit of the reasoning of that appropriate forum on the issues. Indeed, that was the Claimants’ position when they applied for permission to appeal against Order 5 (see paragraph 5(2)(iii) of their skeleton argument in support of that application).

45. The further concerns which we have described in paragraph 31, above, evaporate if our first two broad conclusions are right. Conclusions

46. For those reasons we would grant the Claimants’ application for permission to apply for judicial review, but we would dismiss the application for judicial review.