Determinations about the individual Belhadj claimants’ rights

In the Judgment and accompanying Determination of April 29, 2015, the IPT held that Sami al-Saadi was the only claimant whose legal professional privilege had been violated, and that the violation consisted only of the GCHQ’s obtaining and storing two documents containing privileged material. In accord with its Order of February 26, 2015, the IPT held that al-Saadi’s rights under Article 8 of the ECHR had been violated. The Tribunal determined, however, that his right to a fair trial under Article 6 of the ECHR had not been violated because the privileged information had not been used or disclosed for the purpose of defending against his and others’ civil actions. Al Saadi & ors v. Straw & ors [HQ 12X064]. Moreover, even if the legally privileged material had been disclosed, it would not have benefited the government’s defense.

On the basis that al-Saadi had “not suffered any detriment or damage, because the information was of no significant value and was not disclosed nor used to his prejudice,” the IPT refused to award him damages. “[I]n order to emphasize the importance of the protection of legally privileged material,” the IPT did, however, order GCHQ to destroy or delete the parts of the two documents containing al-Saadi’s legally privileged material, and to submit a closed report confirming that it had done so within 14 days. In addition, the IPT ordered GCHQ to submit a hard copy of the documents to the Interception of Communications Commissioner within 7 days. While the Commissioner was to retain the documents for 5 years in case they should be needed for further legal proceedings or inquiries, GCHQ and the other respondents would need to obtain the IPT’s permission to inspect them and would not be allowed to do so for intelligence purposes.

Further, the IPT noted that although al-Saadi’s lawsuit in regard to abduction and torture was over, the Belhadj Claimants were still engaged in litigation. Despite its determination that the intelligence services had not infringed on the Belhadj Claimants’ legal professional privilege, the IPT noted that the regime governing the privilege had been found illegal and that a new Code had yet to be introduced or approved by Parliament. Accordingly, the IPT asked the parties to agree on “relevant and appropriate undertakings [by the Respondents] to the Belhadj Claimants, pending the introduction of a new Code,” and offered to assist or hear further argument if agreement could not be reached within 7 days. Judgment, Belhadj & Others, para. 24 (vii).

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