PRIVACY INTERNATIONAL AND OTHERS v. THE UNITED KINGDOM DECISION
18. The IPT then considered the question whether the section 5 regime
(in relation to acts mainly done inside the United Kingdom) was compliant
with Article 8 of the Convention before and after the publication of the
Equipment Interference Code in February 2015 during (and apparently as a
result of) the proceedings. Before doing so it underlined that in light of its
conclusions concerning jurisdiction under section 7 (see paragraphs 12-13
above), there was no need for it to examine the section 7 regime but that in
any event the answer would be the same in relation to the question whether
the section 5 regime is compliant with the Convention as for section 7. It
then went on to examine the section 5 regime and following a close
examination of this Court’s case-law concluded that it had been compliant
with the Convention both before and after the publication of the Code.
19. The IPT summarised its conclusions thus:
“89. ...
(i) Issue 1 [S.10 of the CMA]: An act (CNE) which would be an offence under s.3
of the CMA is made lawful by a s.5 warrant or s.7 authorisation, and the amendment
of s.10 CMA was simply confirmatory of that fact.
(ii) Issue 2 [Territorial jurisdiction in respect of ss.5/7]: An act abroad pursuant to
ss.5 or 7 of the ISA which would otherwise be an offence under ss.1 and/or 3 of the
CMA would not be unlawful.
...
(v) Issue 5 [Scope of the Convention]: There might be circumstances in which an
individual claimant might be able to claim a breach of Article 8/10 rights as a result of
a s.7 authorisation, but that does not lead to a conclusion that the s.7 regime is
non-compliant with Articles 8 or 10.
...
(vii) Issue 7 [Bulk CNE]: If information were obtained in bulk through the use of
CNE, there might be circumstances in which an individual complainant might be able
to mount a claim, but in principle CNE is lawful.
(viii) Issue 8 [S.5 post-February 2015 (Weber ...4) to (6)]: The s.5 regime since
February 2015 is compliant with Articles 8/10.
(ix) Issue 9 [S.5 prior to February 2015]: The s.5 regime prior to February 2015 was
compliant with Articles 8/10.
...
90. The use of CNE [Equipment Interference] by GCHQ, now avowed, has
obviously raised a number of serious questions, which we have done our best to
resolve in this Judgment. Plainly it again emphasises the requirement for a balance to
be drawn between the urgent need of the Intelligence Agencies to safeguard the public
and the protection of an individual’s privacy and/or freedom of expression. We are
satisfied that with the new [Equipment Interference] Code and whatever the outcome
of the Parliamentary consideration of the IP Bill, a proper balance is being struck in
regards to the matters we have been asked to consider.”
20. On 9 March 2016 the IPT sent the applicants a “no determination
letter” which read as follows:
5