PRIVACY INTERNATIONAL AND OTHERS v. THE UNITED KINGDOM DECISION
it observed that jurisdiction under the Convention is accordingly territorial
and it is only in exceptional circumstances that extraterritorial jurisdiction
arises.
15. The IPT then noted the parties’ agreement that in ordinary
circumstances there would be no jurisdiction and, in cases where someone
who is the subject of a section 7 authorisation is abroad, it would be difficult
to argue that such a person is within the territorial scope of the Convention
and there would be a very limited number of circumstances in which there
was going to be a breach of the Convention.
16. The parties also agreed that it might be in some circumstances that
an individual claimant could claim a breach of their Article 8 or 10 rights as
a result of a section 7 authorisation but that did not mean that the section 7
regime as a whole was non-compliant with those Articles. The IPT
concluded on the question of jurisdiction by reserving its position,
commenting:
“53 ... we reserve for future consideration if and when particular facts arise and the
position of jurisdiction to challenge a s.7 warrant can be and has been fully argued,
whether an individual complainant may be able to mount a claim ... we have an
insufficient factual basis to reach any useful conclusion.”
17. The IPT then turned to examine the complaint about “bulk CNE
[Equipment Interference]”. So far as it concerned the section 7 regime the
IPT concluded with reference to what was then future legislation
(see paragraphs 29-31 below):
“62. Both aspects of Mr Jaffey [the claimants representative]’s complaints appear to
have been taken up in the IP Bill. Under the heading “BULK POWERS” in the
accompanying Guide, it is stated, at paragraph 42, that where the content of a
UK person’s data, acquired under bulk interception and bulk equipment interference
powers, is to be examined, a targeted interception or equipment interference warrant
will need to be obtained. As for the question of presence in the British Islands, it is
specifically provided in draft clause 147, within the Chapter dealing with
“Bulk Equipment Interference Warrants”, namely by clause 147(4), that there is to be
a similar safeguard to that in s.16 of RIPA in relation to the selection of material for
examination referable to an individual known to be in the British Islands at the time.
63. It seems to us clear that these criticisms are likely primarily to relate to
Bulk CNE carried out, if it is carried out at all, pursuant to a s.7 authorisation (hence
paragraph 7.4 of the E I Code). Mr Jaffey’s own example was of the hacking of a
large internet service provider in a foreign country, and the diversion of all of the data
to GCHQ, instead of intercepting that material “over a pipe” which might be
encrypted, so as to render access by ordinary bulk interception difficult if not
impossible. As with Issue 5 [scope of the Convention], Mr Jaffey specifically
accepted (Day 2/46) that, if Bulk CNE were taking place, and if, prior to any changes
such as discussed above, there were to be insufficient safeguards in place, that does
not render the whole CNE scheme unlawful. As with Issue 5, we reserve for
consideration, on particular facts and when questions of jurisdiction are examined,
whether an individual complainant might be able to mount a claim.”
4