Fryers and Hogg v Secretary of State for Northern Ireland

JurisdictionUK Non-devolved
JudgeMadam Justice McBride,Mr Justice Lane,Judge Stockman
Neutral Citation[2024] UKUT 48 (AAC)
Published date08 March 2024
CourtUpper Tribunal (Administrative Appeals Chamber)
[2024] UKUT 48 (AAC)
IN THE UPPER TRIBUNAL Appeals No. UA-2018-000662-GINS
ADMINISTRATIVE APPEALS CHAMBER UA-2018-000663-GINS
(previously GINS/2919/2018 and GINS/2921/2018)
THE TRIBUNAL PROCEDURE (UPPER TRIBUNAL) RULES 2008
Appellants: Robert Fryers and Seamus Hogg
Respondent: The Secretary of State for Northern Ireland
Before: Madam Justice McBride, Mr Justice Lane, Judge Stockman
NOTICE OF DECISION
These appeals are brought under section 28(4) of the Data Protection Act 1998 against national
security certificates issued by the Secretary of State for Northern Ireland (the SOSNI). The issue
before us on the appeals is whether, applying the principles applied by the court on an application for
judicial review, the SOSNI did not have reasonable grounds for issuing the certificates.
For the reasons we give below, we dismiss the appeals.
REASONS
Background
Circumstances
1. The two appeals arise out of requests for personal information relating to the practice of
administrative detention generally known as internment operating in Northern Ireland in
the early to mid-1970’s. Internment was implemented by three successive legislative schemes
- namely the Civil Authorities (Special Powers) Acts 1922-1943 (the Special Powers Act), the
Detention of Terrorists (Northern Ireland) Order 1972 (the 1972 Order) and the Northern
Ireland (Emergency Provisions) Act 1973 (the 1973 Act).
2. The first appellant, Mr Fryers, was detained under an interim custody order dated 17 July
1973, made under the 1972 Order. Following hearings before a Commissioner and a
Detention Appeal Tribunal, he remained in detention until 29 October 1975.
3. The second appellant, Mr Hogg, was detained on 11 January 1972 under the Special Powers
Act and was the subject of an internment order made on 14 February 1972. He was released
on 8 August 1972, but was detained again under the 1972 Order on 22 December 1972. A
Commissioner ordered his discharge from detention on 15 February 1973. However, on 23
May 1973 he was detained again under the 1972 Order and, following hearings before a
Commissioner and a Detention Appeal Tribunal, he remained in detention until 31 December
1974.
4. On 10 July 2013, along with many others, the appellants requested access to the files relating
to their detention, which are presently held by the Public Records Office of Northern Ireland
(PRONI). They formally requested “any legal papers and documentation you may have in
Appeals No. UA-2018-000662-GINS UA-2018-000663-GINS
Robert Fryers and Seamus Hogg v The Secretary of State for Northern Ireland
[2024] UKUT 48 (AAC)
2
relation to [our] detention and internment” by way of a subject access request under section 7
of the Data Protection Act 1998 (the DPA 1998).
5. PRONI provided each of the appellants with copies of relevant files. However, the copies of
the files that they received were subject to substantial redactions. The redactions were said to
be justified by statutory exemptions from disclosure on grounds of national security under
section 28 of the DPA 1998, on grounds of prevention of crime under section 29 of the DPA
1998 and by the obligations under section 7(6) of the DPA 1998 to protect third party personal
information. Additionally, on 22 October 2014 in the case of Mr Fryers and on 22 January 2015
in the case of Mr Hogg, the then SOSNI signed certificates certifying that exemption was
required for the purpose of safeguarding national security (the original certificates). By law,
such certificates amount to conclusive evidence of that fact.
6. The appellants lodged appeals against the original certificates (the original appeals).
Subsequently, in the period following the repeal and replacement of the DPA 1998 with the
Data Protection Act 2018 (DPA 2018), the original certificates were withdrawn. This resulted
in the dismissal of the original appeals by a decision of the Upper Tribunal in Fryers and Hogg
v Secretary of State for Northern Ireland [2019] UKUT 22 (AAC). However, the SOSNI issued
further national security certificates on 8 October 2018 to the same effect as the original
certificates. The appellants duly appealed against those certificates to the First-tier Tribunal
(General Regulatory Chamber) (the FTGRC). Those appeals are the subject of the present
proceedings.
Procedure
7. By a direction of 23 November 2018, the President of the FTGRC transferred the appellants’
first instance appeals to the Upper Tribunal (Administrative Appeals Chamber) (the Upper
Tribunal) under rule19 of the First-tier Tribunal (General Regulatory Chamber) Rules 2009 (as
amended). On 29 March 2021, an Upper Tribunal judge directed that the two appeals should
be heard together.
8. An Upper Tribunal judge further directed in accordance with rule 14(10) of the Tribunal
Procedure (Upper Tribunal) Rules 2008 (the UT Rules) that there should be no disclosure of
closed materials (i.e.the unredacted files) to the appellants or their representatives. He
directed that an agreed joint open bundle of evidence and a closed bundle should be prepared.
Under rule 37 he directed that a closed hearing should take place in private, with the exclusion
of the appellants and their representatives from the closed part of the hearing.
9. The appellants requested that their interests should be represented in the closed hearing by
a special advocate. A preliminary hearing was held on this issue on 9 March 2022. We decided
against the appointment of a special advocate. We observed the principles set out in the
decision of the Court of Appeal in England and Wales in Browning v Information Commissioner
and DBIS [2014] EWCA Civ 1050, which approved the reasoning set out in Appendix 2 to the
decision in British Union for the Abolition of Vivisection v Information Commissioner and
Newcastle University, heard before the First-tier Tribunal under reference EA/2010/00064. We
decided that we were appropriately placed to assess the application of the provisions of the
DPA 1998 by testing the closed evidence of the SOSNI and could properly perform that role.
Relevant legislation

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