Balfour v Foreign and Commonwealth Office
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL |
| Judgment Date | 09 December 1993 |
| Judgment citation (vLex) | [1993] EWCA Civ J1209-11 |
| Docket Number | EATRI 93/0393/B |
| Court | Court of Appeal (Civil Division) |
| Date | 09 December 1993 |
[1993] EWCA Civ J1209-11
(Mr. Justice Knox, Mr. A Ferry MBE and Mr. Hack JP)
Before: Lord Justice Russell Lord Justice McCowan Lord Justice Hirst
EATRI 93/0393/B
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
MR. R. ALLEN and MR. A. BRADLEY (Instructed by John Wadham, National Council for Civil Liberties, 21 Tabard Street, London, SE1 4LA) appeared on behalf of the Appellant
MR. C. KATKOWSKI (Instructed by the Treasury Solicitor) appeared on behalf of the Respondent
( )
Thursday, 9 December 1993
This appeal raises once more the problem of public interest immunity, and in particular the function of the Court when confronted with a Certificate, signed by the Secretary of State, claiming immunity from disclosure of material on the ground of national security.
The case has already generated a considerable volume of paper contained in a number of files, but for the purposes of this appeal it is necessary to refer to the facts only in the barest outline.
The Appellant began his career with the Foreign and Commonwealth Office in 1969. In 1985, whilst in Syria, he issued a Visa permitting entry into the United Kingdom to a man called Hindawi. He was a terrorist. Much later the Appellant was interrogated about the issue of the Visa but no disciplinary charges were preferred.
In 1986 the Appellant was posted to Dubai as Vice Consul and Visa Officer. There he had dealings with a man called Ansari. In early 1989 the Appellant provided Ansari with the number of a bank account in the name of the Appellant's brother in law, a Mr Broomhead in the United Kingdom. On 16th April 1989 the Appellant issued a Visa to Ansari and in May 1989 Ansari transferred £5,000 into Mr Broomhead's account in the United Kingdom.
On 27th May 1989 the Appellant was instructed to return to London and he did so the following day. There he was interrogated and for a time was under arrest, detained pursuant to the Prevention of Terrorism Act. No criminal proceedings ensued against the Appellant. However, on 16th March 1990 disciplinary proceedings against the Appellant were commenced. The principal complaint was in the following terms:-
"Mr Balfour approached an Iranian businessman in Dubai with a request to borrow £20,000. The businessman agreed to lend Mr Balfour £5,000. Subsequently, £5,000 was paid into Mr Balfour's brother in law's bank account. Mr Balfour subsequently induced his brother in law to write three fictitious letters to the businessman purporting to show that the £5,000 was payment for a transaction between Mr Balfour's brother in law and the Iranian businessman, Mr Mehrdad Ansari Shirazi…It cannot be proved why these considerable sums of money and gifts were received by Mr Balfour. But their receipt, unreported, and in one instance with an elaborate attempt at concealment, amounts ……to breaches of the following Diplomatic Service Regulations:-
(a)DSR 8 (General Principles of Conduct) and
(b)DSR 9 (Acceptance of Gifts and Advantages)".
After some delay the Disciplinary Board recorded its decision on the 20th September 1990. Inter alia it found that a sum of £5,000 had been transferred from Ansari's account to that of Mr Broomhead and that the Appellant was aware that three fictitious letters had been written by Mr Broomhead in an endeavour to show that the £5,000 was paid pursuant to a legitimate commercial transaction. The Board noted that no invoices had been issued for the £5,000 and concluded, contrary to the assertions of the Appellant, that he had not arranged any legitimate business transaction with his brother in law but had been instrumental in obtaining the transfer of the money. Disciplinary offences had therefore been committed by the Appellant and dismissal was recommended.
The Appellant appealed unsuccessfully to the Appeal Board. Mr Broomhead declined an invitation to appear. The Appellant's dismissal followed on 25th February 1991.
Meanwhile the Appellant had submitted an application to an industrial tribunal on 11th January 1991 which contained the following observation:
"My grounds for appeal have been classified 'secret' under the Official Secrets Act and I am not yet able to provide details. The grounds for my dismissal are wrong and unfair."
The respondents answer was to the effect that
"The conduct in question was obtaining the transfer of £5,000 from an official contact, namely an Iranian businessman, to the account of the applicant's brother in law in breach of Diplomatic Service Regulations (DSR 8 & 9), which, inter alia, require officers not to use their official position to further their private interests and not to accept gifts or advantages."
Later in their response the respondents observed:
"In relation to the transfer of £5,000 the Applicant, having set out the main substance of his arguments, included certain material of a secret nature, disclosure of which would be contrary to the public interest. For that reason the whole document was given a "secret" classification. In the proceedings before the tribunal the FCL will resist disclosure of the material in question on grounds of public interest immunity, but will consent to disclosure of the balance of the written submissions. For that purpose the FCL will produce a copy of the written submissions from which the material in question has been excised and will remove the secret classification in respect of that copy".
In amended grounds of application the Appellant contended that he had been requested by the United Kingdom Security Services to maintain contact with Ansari and that the transfer of £5,000 was pursuant to a legitimate business transaction between Ansari and the Appellant's brother-in-law. The Appellant did not know that the £5,000 had actually been transferred and insofar as he was involved in the writing of fictitious letters that was no more than an error of judgment on his part.
Thus the battle lines were drawn and thus the Foreign and Commonwealth Office defined its stance in relation to disclosure of sensitive material.
On 26th June 1991 Her Majesty's Secretary of State for Foreign and Commonwealth affairs signed the first of two Certificates claiming public interest immunity. His second Certificate was dated 26th January 1992. A third Certificate signed by Her Majesty's Secretary of State for the Home Department was signed on 27th January 1992.
The three Certificates are in similar terms. Each raised objection to the production of any evidence, documentary or otherwise, about the organisation of the Security and Intelligence Services, their theatres of operation or their methods. Express reference was made to foreign powers and terrorist organisations and the threat to national security of disclosure. It has not been suggested that the Certificates lacked particularity either as to the nature and content of the material which attracted immunity or as to the reasons for the claim.
On the 29th January 1992 a Chairman of the London South Industrial Tribunal conducted an interlocutory hearing and refused to order disclosure by the Foreign and Commonwealth Office of certain documents sought by the Appellant. Her decision was upheld by the Employment Appeal Tribunal (Knox J, Mr A. Ferry MBE and Mr K. Hack JP) and this Appeal is against the Judgment of Knox J. presiding, which he delivered on the 29th January 1993 ( Balfour v Foreign Office 1993 ICR 663.
It is right that we should record at this stage the precise ambit of this Appeal. Knox J, did not deal in his judgment with the potential relevance of the material in respect of which immunity is claimed, and we did not hear full argument upon this aspect of the case. However, in his skeleton argument Counsel for the Appellant recognised that disclosure of documents and inspection by the Court of such documents where public interest immunity is claimed can arise only if the Court is satisfied that the documents "will contain material which will give substantial support to the contentions of the parties seeking disclosure". We feel bound to observe that we have experienced great difficulty in understanding how, in the instant case, the Appellant could overcome this first hurdle. The primary facts, the payment of £5,000 and...
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