The ‘neither confirm nor deny’ (NCND) response

In March 2017, JUSTICE hosted a roundtable at University College London with practitioners, experts and academics on the ‘neither confirm nor deny’ (NCND) response. The NCND response is most often used by public authorities in the national security and law enforcement contexts to avoid revealing sensitive information. It may, for example, be used in response to requests for information on undercover operations or in relation to surveillance programmes. However, in some circumstances, NCND has been used by public authorities to avoid disclosing information that may reveal unlawful activity. For instance, the police repeatedly used NCND in response to allegations of undercover police officers maintaining long-term, intimate relationships with environmental activists. Currently, NCND is being used in relation to the government’s alleged mass surveillance programmes revealed by US whistle-blower Edward Snowden.

JUSTICE will soon publish a short report which will build on the discussions at the roundtable, and previous JUSTICE, work to analyse the access to justice and procedural fairness issues raised by NCND. It will argue that although there are legitimate circumstances where the response can be invoked, it should not be applied in a blanket fashion. Overuse of NCND unduly limits a claimant’s ability to plead their case and threatens open justice.

JUSTICE’s work was supported by Oxford Pro Bono Publico (OPBP), an organisation based at the Oxford University Faculty of Law, who conducted comparative research on the use of NCND in various jurisdictions. Both the JUSTICE and the OPBP reports will be published soon and we will be holding a joint ‘Neither Confirm Nor Deny’ workshop at the Bonavero Institute, Oxford University, 3.00pm-5.00pm on Monday 20 November to consider ways to improve transparency and accountability.