MR JUSTICE BURTON
Approved Judgment
Belhadj and Security Service
plain, from paragraph 9 of that Practice Direction, that two of the matters raised by
Mr Jaffey, even if we had otherwise been persuaded by them, namely the asserted
culpability of the Respondents’ conduct and the manner of the Respondents’ handling
of the proceedings, would not have been appropriate considerations in any event. We
have concluded, as set out in paragraph 12 of the Determination, that this is a case in
which no compensation is called for, and that there is just satisfaction by virtue of the
finding in favour of the Third Claimant.
24.
25.
The undertakings given by the Respondents in these proceedings expire automatically
on the determination of these complaints. However we note the following:
(i)
The present regime governing interception of LPP has been declared
unlawful, as above;
(ii)
A new Code has not yet been put before, or approved by, Parliament;
(iii)
The High Court action by the Third Claimant, who alone has been the
subject of the Tribunal’s Determination, has now concluded;
(iv)
The claims in these proceedings by Amnesty, including applications for
relief by way of an appointment of an independent lawyer, which Mr
Tomlinson accepted only arose in the event of Amnesty’s claim being
established, have not succeeded;
(v)
Although the claims in these proceedings by the Belhadj Claimants have
not succeeded, they continue to be involved in litigation with the
Respondents;
(vi)
The Respondents have persuasively contended that any suggested injunctive
relief, to include such procedural suggestions as automated destruction, as
mentioned by Mr Jaffey, is best dealt with by awaiting the review of the
system, in which all the Claimants have had, and no doubt taken, the
opportunity to take part during the consultation period. The Tribunal has
noted a similar view taken in R (GC) v Commissioner of the Metropolis
[2011] 1 WLR 1230 by the Supreme Court (see paragraphs 47 per Lord
Dyson and 73 per Baroness Hale);
(vii)
It may be that the Respondents are willing to give relevant and appropriate
undertakings to the Belhadj Claimants, pending the introduction of a new
Code; and
(viii)
Although we have heard no argument on the point, it may be that there
would be a doubt, by reference to s.67(7) of RIPA, as to the Tribunal’s
power to grant relief (in the absence of undertakings) where there has been
no determination in favour of a Claimant.
In the light of the above, the Tribunal invites the parties to see if agreement can be
reached in relation to such undertakings as are adumbrated in paragraph 24(vii) for a
period of say 6 months or until a new Interception of Communications Code of
Practice is approved by Parliament. If the parties are unable to reach agreement in
that regard within 7 days of delivery of this judgment, then the Tribunal would be