Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                                                      Appeal No.  GINS/3193/2012

ADMINISTRATIVE APPEALS CHAMBER

 

 

Introduction

1.             The Appellant appealed by letter dated the 19^th September 2012 under Section 28 of the Data Protection Act 1998 (the DPA) from the reliance by the Second Respondent on a certificate of the First Respondent that certain of the personal data requested by the Appellant was exempt for the purpose of safeguarding national security in accordance with the terms of that certificate.   The appeal was transferred to the Upper Tribunal by direction of the Chamber President dated the 27 September 2012.  

 

Legal framework

2.             By section 7 of the DPA, a right of access to personal data is provided subject to exemptions in Part IV of the Act.  Section 28 of the DPA provides, so far as relevant:

“(1)   Personal data are exempt from any of the provisions of

(a) the data protection principles;

(b) Parts II, III and V, …

if the exemption from that provision is required for the purpose of safeguarding national security.

 

(2)     Subject to sub-section 4 a certificate signed by a minister of the Crown certifying that exemption from all or any of the provisions mentioned in sub-section (1) is or at any time was required for the purpose there mentioned in respect of any personal data shall be conclusive evidence of that fact.  

 

(3)     The certificate under sub-section (2) may identify the personal data to which it applies by means of a general description and may be expressed to have prospective effect. 

 

(4)     Any person directly affected by the issue of a certificate under sub-section (2) may appeal to the Tribunal against the certificate.

 

(5)     If on an appeal under sub-section (4) the Tribunal finds that, applying the principles applied by the court on an application for judicial review, the minister did not have reasonable grounds for issuing the certificate, the Tribunal may allow the appeal and quash the certificate.

 

(6)     Where in any proceedings under or by virtue of this Act it is claimed by a data controller that a  certificate under sub-section (2) which identifies the personal data to which it applies by means of a general description applies to any personal data, any other party to the proceedings may appeal to the Tribunal on the grounds that the certificate does not apply to the personal data in question and, subject to any determination under sub-section (7), the certificate shall be conclusively presumed so to apply.

 

(7)     On any appeal under sub-section (6) the Tribunal may determine the certificate does not so apply.”

 

3.             Schedule 6 to the DPA applies to appeals under section 28.  For present purposes the relevant procedure is set out in the Tribunal Procedure (Upper Tribunal) Rules 2008, which  includes by Rule 8(3):

“(3)   The Upper Tribunal may strike out the whole or a part of the proceedings if ... (c) in proceedings which are not an appeal from the decision of another tribunal or judicial review proceedings, the Upper Tribunal considers there is no reasonable prospect of the appellant’s … case or part of it succeeding.

 

(4)     The Upper Tribunal may not strike the whole or part of the proceedings under paragraph 3.3 ... (c) without first giving the appellant ... an opportunity to make representations in relation to the proposed striking out.” 

 

 

The appeal

4.             The Appellant’s letter of appeal provided:

“I am writing this letter to (appeal) a decision by MI5 on 10/09/2012 in order to redact my information under section 28 DTA.  I like to (appeal) that under the rules 2000 (SI 2000 No. 206).

 

I have been a subject of a most horrific way of torture by MI5 and I don't believe they should be able to redact all my information and hid all their crimes behind the legislations.  Plus not all that information’s will come under section 28 DTA.   I really need some of that information’s in order to take legal action please pass this request on to the relevant department for the best result, and please get (back) to me as soon as passible.  Or please advise me about what I have to do in order to have this information.  I will also send a copy of the letter I have received from MI5.” (Save for the words in parenthesis which have been treated in accordance with their sense, the remainder of the text is as printed.)

 

5.             That letter was treated, so far as relevant, as an appeal under section 28(4) and (6)  of the DPA.  

 

Factual Background

6.             The Second Respondent received a general request from the Appellant for all information about him and the actions that have been taken by MI5 in respect of the Appellant on the 2 August 2012.  That was followed by further information as to the data requested in the following terms “From beginning of 2010 ongoing from 5/6/011 I lived with Camilla your spy until 1/1/12”(sic). 

7.             At the same time the Appellant made a complaint to the Investigatory Powers Tribunal about the Second Respondent’s treatment of him. 

 

8.             On the 10 September 2012 the Second Respondent responded to the subject access request under section 7 of the DPA.  It identified personal data comprising a letter from the Investigatory Powers Tribunal notifying the Second Respondent of the complaint, a record of two telephone calls made by the Appellant to the Second Respondent and copies of correspondence relating to the subject access request.  The data enclosed with the response had personal data of third parties deleted by way of redaction.  In the covering letter, the Second Respondent explained that some of the data had been redacted as it was the personal data of a third party and some had been redacted under the certificate issued by the minister as exempt for the purposes of safeguarding national security.

 

9.             As indicated above, on the 19 September 2012 the Appellant appealed under Section 28 of the DPA.  On the 5 October 2012 the Information Commissioner’s Office rejected the Appellant’s complaint about the handling of the subject access request and indicated that it was covered by the Section 28 Certificate. 

 

10.         On the 9 October 2012 the Appellant wrote directly to the Tribunal saying

“I'm writing this letter to let you know I was subject to a most horrific way of torture by MI5 for a period of two and half years, three years.  I was torture mentally, sexually and physically, I have been drugged at many points and I had a spy in my life as a girlfriend, friend, teachers, NABORS and many more.  I would really need the information about me at MI5 in order to take legal action and find a solicitor, at this time because I do not have that information, I cannot find a solicitor.  I'm receiving treats all the time, in case taking a legal action, I was also kidnapped at one point by the Security Services and many thinks has happened in these 3 years.  I would really appreciate if you would allow me to be at the court when you make that decision so I can have a chance to defend of myself and be able to let you know what has happened.  Judge I beg of you please do not let them to hid their crime behind Section 28 of the DPA.  I need to be able to defend myself in the court of low, what MI5 has done to me in this three years are violation of all European and UK lows.   Judge no one take me seriously please give me the chance to be at the court and let me have the information to be able to have a solicitor, please, please.  I would be  looking forward to hear bake from you please do not hesitate to contact me if you have any questions.  Thanks.”(sic)

 

The letter was acknowledged by the Tribunal.

 

11.         On the 15 November 2012 the Tribunal gave interim case management directions for the Respondents to respond to the Notice of Appeal and thereafter for the Appellant to have one month in which to submit a reply.

 

12.         On the 20 November 2012 the Appellant wrote again to the Tribunal referring to his past treatment and threats from the police and MI5 and in a second letter asking for a hearing so he would have the chance to explain the situation and defend himself. 

 

13.         On the 9 January 2013 the Respondents submitted an open response in which they rejected the appeal on the grounds that it disclosed no basis for appeal under section 28(4) of the DPA and that section 28(6) did not apply.  At the same time they submitted a closed response.    Thereafter a panel of three judges was constituted to consider the appeal. 

 

14.         On the 28 June 2013 the Tribunal made further directions.  It upheld the First Respondent’s objection to disclosure of the closed part of its response and directed that the closed part should not be disclosed to any other person than the Respondents and their authorised representatives.    The Appellant was given one month to respond to the Respondents’ response. The Tribunal has not found it necessary to refer to that closed material for the purposes of the subsequent proceedings in this appeal or this decision.

 

15.         On the 5 July 2013 the Appellant responded in the following terms:

“I am writing this letter as a respond to your letter of 28^th June 2013.  I would like to let the court know that in 2012 the Security Services have taken me to the court to revoke my citizenship and after the investigation has done millions of pounds was payed out as a compensation to the people who was representing me and they are taking advantage of the situation and refusing to pay the money back plus because of all this investigation and what security services have done to me police clams I have a phycology problems and stop me from employment and a normal life having that information are  only way to fix this situation.  This is also in the interests of justice for that information to come out and security services should not be able to hid and steel a vulnerable person’s life and money.  It is also in the interest of public to know about the crimes committed by security services.  I would like the court to take my situation in consideration and understand this information is to save my life and justice.  I would also like to ask for a hearing so I would be able to have a chance to discuss this matter provide some evidence about the money that has been payed out and security services refusing to give that money to me. As not having this information could have a really bad phycology affects on me, it would be against my human rights to not have this information.  Thanks.”  (sic)

 

16.         On the 9 October 2013 the Tribunal gave further case management directions, having concluded that it should consider its power to strike out the appeal as a whole or in part as having no reasonable prospect of success pursuant to Rule 8(3)(c) of the Upper Tribunal Rules.   It directed that the Appellant should send to the Upper Tribunal, to be received before the 7 November 2013, any representations in writing as to why the appeal should not be struck out in whole or in part and whether he seeks an oral hearing to make those representations.  The Respondents would have four weeks to respond to the Appellant’s representations including as to whether they sought an oral hearing.  Thereafter the Appellant should have a further four weeks to respond to the Respondents’ representations.  The Tribunal would then decide whether it was  appropriate to hold an oral hearing.  If it decided that no hearing would be appropriate, it would proceed to issue its decision in writing.   The directions provided that the parties may apply in writing for further directions varying those directions. 

 

17.         On the 15 October 2013 an email was received from the Appellant saying:

“I am writing this letter to apply for an oral hearing.  Please get back to me if you have any outer request.” (sic)

 

18.         On the 4 November 2013 the Tribunal responded to the Appellant, acknowledging the email of the 14 October 2013 and referring to the direction of the Tribunal seeking representations as to why the appeal should not be struck out.   It sought a response by the 7 November, either providing written arguments or confirming that the Appellant did not intend to submit written arguments, and indicated that,  if the Appellant was unable to do so by the deadline of the 7^th November, he could apply for an extension of time.  No further representation was received from the Appellant.

 

19.         On the 9 January 2014 the Respondents confirmed they did not wish to make further representations and that they did not seek an oral hearing.  No further representations were thereafter made by any of the parties.  

 

The Certificate

20.         The Certificate was made by the Secretary of State on 10^th December 2001.  It certifies that personal data held by the security services is and shall continue to be required to be exempt from the relevant provisions of the DPA for the purpose of safeguarding national security provided that:

“(1) no data shall be exempt from the provisions of section 7(1)(a) of the (DPA) if the Security Service … determines that adherence to the principle of neither confirming nor denying whether the Security Services holds data about an individual is not required for the purpose of safeguarding national security;

(2)  no data shall be exempt from the provisions of Section 7(1)(b)(c) or (d) of the (DPA) if the Security Service … determines that  non-communication of such data or any description of such data is not required for the purpose of safeguarding national security.”  

 

21.         In Re Terence Patrick Ewing 2002 EWHC 3169 the Court concluded that there were no arguable grounds for challenging the form of the certificate; the Tribunal  has similarly rejected challenges to the certificate in Gosling v. SSHD 1 August 2003, Hitchens 1 August 2003 and Stevenson v. SSHD 30 April 2009.  

 

Consideration

Oral hearing

22.         We have considered the request by the Appellant for an oral hearing.  In doing so we have in particular had regard to the overriding duty on the court and the interests of fairness.  We are satisfied that the Appellant has had ample opportunity to set out the matters on which he relies in support of the Section 28 appeal under the DPA.  Further, he has had ample opportunity to explain any particular reasons relating to that appeal why an oral hearing is required. 

 

23.         Having regard to the nature of the matters that have been put forward and the scope of a Section 28 appeal, we are entirely satisfied that there is no ground upon which an oral hearing would be required in the present case to deal with the relevant issues in coming to a conclusion whether or not the appeal should be struck out. 

 

24.         In our judgement, the overriding interest of a fair and just disposal of these proceedings for all parties dictates that the proper course is to determine the matter on the written representations that have been made.  We are not satisfied that there is any question in that respect of a breach of any human rights on the part of the Appellant.  We accordingly will proceed to deal with the present question on the papers without an oral hearing.  

 

Striking out

25.         We approach the question of whether there is no reasonable prospect of the appeal or any part of it succeeding on the basis of taking the Appellant’s case as stated at its highest.  In our judgement two issues arise for determination, (1) whether there is any reasonable prospect of a challenge to the certificate upon which the Respondents rely and (2), if there is not, whether there is any reasonable prospect of the appeal succeeding on the basis that the certificate does not apply to the personal data, the subject of the subject  access request. 

 

26.         The second issue particularly concerns the operation by the Second Respondent of the proviso in determining that adherence to the principle of neither confirming nor denying or non-communication of the data is required for the purpose of safeguarding national security. This gives rise to the question whether this is properly an appeal under section 28(4) against the certificate or whether there are here proceedings for the purpose of section 28(6) enabling the Appellant to appeal on the ground that the certificate does not apply to the personal data. 

 

27.         In the former case by virtue of section 28(5) the appeal is to be determined on the basis of normal administrative review principles.   In the latter case it seems to us that it is for us to determine whether the data applies.  However, as under the certificate it is for the Security Services to determine whether or not the exemption is required for the purpose of safeguarding national security, in effect it is in our judgement a question whether the Security Services have lawfully made that determination.  That is therefore also a question that is in effect to be determined on administrative law principles and in particular whether the determination failed to have regard to material considerations or was perverse or otherwise unlawful.  However, we should make clear that, even if it is a determination for this Tribunal (which we do not accept), our decision would remain the same.

 

 

28.         We are inclined to the view that, in so far as it is alleged that the certificate should not apply to the Appellant’s personal data, the appeal is properly regarded as an appeal under section 28(6) and that ‘proceedings’ for that propose should be given a broad interpretation to include proceedings of any sort.  In any event for the purposes of determining the question of strike out we have assumed that the Appellant is entitled to appeal under section 28(6) in so far as he alleges that the certificate should not apply to his personal data and have therefore approached the appeal as an appeal under section  28(4) and (6).  In taking that approach we would make clear that we are not intending to make a final ruling on this point which it is unnecessary to determine for the question of striking out.

 

29.         We should also add that we do not regard our powers under Rule 8(3)(c) as restricted because, although the principles applied under Section 28(4) are the principles that apply on an application for judicial review, it is not in our judgement a judicial review proceeding for the purpose of the exclusion from Rule 8(3)(c).  

 

30.         In respect of the appeal under section 28(4) in our judgement there is no ground of  challenge with any reasonable prospect of success to the certificate that has been made.  The certificate was well within the scope of the Secretary of State’s discretion under the section for the reasons set out in the authorities to which we have referred above and in respect of which no point of distinction has been raised or could reasonably, in our judgment, be raised on the facts of the present case. 

 

31.         So far as the application of the certificate to the particular personal data in the present case and the appeal under section 28(6), having regard to the nature of the data disclosed, in our judgment there is no reasonable prospect of the appeal succeeding.  In coming to that conclusion we have  had  regard to the nature of the subject access request and to the matters set out in the statement of the Second Respondent with regard to the importance of the application of the certificate to personal data of this kind and the principle of neither confirm nor deny. 

 

32.         We note that the Appellant has not put forward any specific grounds to support his appeals under section 28 in either respect.  His wider grounds of complaint about his alleged mistreatment by the Second Respondent and otherwise are not matters which in our judgement are of any direct relevance to the Section 28 appeals.  In particular they do not provide grounds to support a conclusion that the certificate was unlawful or that the particular personal data is not covered by the certificate. 

 

33.         For all the above reasons we conclude that there is no reasonable prospect of the Appellant’s appeal  or any part of it succeeding.  In these circumstances we have a discretion whether or not to strike the case out at this stage.  In our judgement, in accordance with the overriding duty it is appropriate that the proceedings be struck out without requiring further expenditure of time and costs on  a hearing where there is, as we have concluded, no reasonable prospect of the appeal succeeding. 

 

Decision

34.         The Tribunal has concluded

(i)            that there should be no oral hearing and that the question of striking out should be determined on the written representations in writing; and

(ii)          that the appeal should be struck out as a whole on the ground that there is no reasonable prospect of it succeeding in part or in whole in accordance with Rule 8(3)(c) of the Tribunal Procedure (Upper Tribunal) Rules 2008.

 

 

 

(Signed on the Original)

 

Robin Purchas QC

 

 

Judge Roderick Macdonald QC

 

 

Judge Christopher  Ryan

 

 

 

Dated:                                                        14^th October 2014