reference to s.71 of RIPA or at all (see paragraph 1.4). In that paragraph, and
more specifically in paragraph 7.1 of the E I Code, it is stated that “SIS and
GCHQ should as a matter of policy apply the provisions of [the] code in any
case where equipment interference is to be, or has been, authorised pursuant
to section 7 of the 1994 Act in relation to equipment located outside the British
Islands”. But there is a footnote to that paragraph which expressly says
“without prejudice as to arguments regarding the applicability of the ECHR”.
50.
It was, in the event, common ground that, subject to Mr Jaffey’s reserving his
clients’ position to be considered further if necessary in the ECtHR, there is a
jurisdictional limit on the application of the ECHR, by virtue of Article 1,
ECHR, which provides that “the High Contracting Parties shall secure to
everyone within their jurisdiction the rights and freedoms defined in Section 1
of this Convention”. It was also common ground that, in the absence of any
ECtHR authority, the Convention should not be interpreted more generously
in favour of claimants than the ECtHR has been prepared to go, in
circumstances where there is no right of appeal for the Government from the
domestic courts to the ECtHR: see R (Ullah) v Secretary of State for the
Home Department [2004] 2 AC 323 at para 20 per Lord Bingham.
51.
Jurisdiction under the ECHR is accordingly territorial; and it is only in
exceptional circumstances that extraterritorial jurisdiction arises (see
Bankovic v UK [2007] 44 EHRR SE 5 and Al-Skeini v UK [2011] 53 EHRR
18 at para 131). As is made clear in Bankovic at paragraph 73, jurisdiction is
not a doctrine of ‘mere effects’.
52.
There is thus no dispute between the parties that in ordinary circumstances
there would be no jurisdiction by reference to Articles 8 or 10 with regard to
the acts outside the British Islands which would be the subject of authorisation
under s.7. Mr Eadie submitted that other circumstances would be exceptional.
Mr Jaffey gave examples of circumstances which might engage those Articles:
complainant in the jurisdiction but computer or information abroad, computer
or phone brought back to the jurisdiction etc. But he accepted that in most
cases where someone who is the subject of an authorisation granted under s.7
is abroad it was difficult to argue that such person is within the territorial
scope of the Convention, and in any event that there would be a “very limited
number of circumstances” in which there was going to be a breach of the
Convention (Day 2/25). As is clear from the current Advance Training for
Active Operations, disclosed in these proceedings, “CNE operations must be
authorised under ISA Section 5 or Section.7, depending whether the target
computer or network is located within or outside the British Islands”.
53.
Before fully accepting the consequences of the jurisdiction argument, which
the Vice-President had put to him, Mr Jaffey appeared to argue (Day 1/161)
that any s.7 authorisation prior to the introduction of the E I Code “had to fall”
(Day 1/161), a submission which he later expressly clarified (Day 3/177).
Both in that latter passage and earlier (Day 2/24-26) he appeared to agree in
clear terms with Mr Eadie (Day 3/120) that the fact that there might be an
individual claimant who might be able to claim a breach of Article 8/10 rights
as a result of a s.7 authorisation would not lead to a conclusion that the s.7
regime as a whole could be argued to be non-compliant with Articles 8 or 10.