PRIVACY INTERNATIONAL AND OTHERS v. THE UNITED KINGDOM DECISION
to Equipment Interference both inside and outside the United Kingdom. The
IPT held a hearing which lasted for three days during which it heard
argument from the parties’ legal representatives and took evidence from
expert witnesses. It gave its judgment on 12 February 2016.
8. At the outset of its decision the IPT explained its well-established
approach to:
“2. ... make assumptions as to the significant facts in favour of claimants and reach
conclusions on that basis, and only once it is concluded whether or not, if the assumed
facts were established, the respondent’s conduct would be unlawful, to consider the
position thereafter in closed session. This procedure has enabled the Tribunal on what
is now a number of occasions, to hold open inter partes hearings, without possible
damage to national security, while preserving, where appropriate the Respondents
proper position of Neither Confirmed Nor Denied.”
9. The proceedings went ahead on the basis of an assumption in favour
of the applicants and were not held in closed session at any point. In the
course of the proceedings the Government accepted (or avowed) the use of
Equipment Interference. They also published the Equipment Interference
Code of Practice (see paragraphs 26-27 below).
10. Examining first the domestic legal regime, the IPT concluded that
acts of Equipment Interference which would be unlawful under the
Computer Misuse Act 1990 (“CMA” – see paragraphs 22-23 below), were
rendered lawful where a warrant or authorisation to conduct Equipment
Interference had been obtained under sections 5 or 7 of the ISA,
respectively.
11. Having considered domestic lawfulness, the IPT turned expressly to
the Convention arguments and set out its conclusions concerning section 7
authorisations (in relation to acts done outside the British Islands) in
paragraphs 53 and 63 of its decision.
12. It considered first the question of jurisdiction and whether
Equipment Interference undertaken outside the United Kingdom would
come within the scope of the Convention.
13. The IPT noted that there was no possibility to issue a code of
practice for section 7 but that the Equipment Interference Code of Practice
itself indicated:
“49 ... 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.”
14. The IPT observed however that the Code included a footnote which
said it was “without prejudice as to arguments regarding the applicability of
the ECHR”. The IPT went on to recall that section 7 authorised unlawful
acts “outside the British Islands”. It contrasted this with the member states’
obligation to secure to everyone “within their jurisdiction” the rights and
freedoms set out in the Convention. With reference to the Court’s case-law
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