MR JUSTICE BURTON
Approved Judgment
Human Rights Watch & Ors v SoS for the Foreign &
Commonwealth Office & Ors
exceptional circumstances which have never occurred) if there is in existence a
relevant RIPA interception warrant permitting specific targeting of their
communications of identified non-US parties.
Accordingly the Respondents
submitted, particularly in the light of Zakharov, as follows, in their skeleton
argument of 12 April 2016 (“the Respondents’ Skeleton”):“9. Consequently the Applicants would have to be in a position
to satisfy the Tribunal that they belong to a group of persons
who may be said to be possibly affected by the Intelligence
Sharing Regime. In particular:
a. The Prism and Upstream programmes permit the
interception and acquisition of communications to, from
or about specific tasked selectors associated with nonUS persons who are reasonably believed to be outside
the US. i.e. they concern unanalysed intercepted
communications (and associated communications data)
relating to particular individuals outside the US, not
broad data mining.
b. As stated in the Disclosure which was provided in the
Liberty/Privacy proceedings, the Intelligence Services
have only ever made a request for such unanalysed
intercepted
communications
(and
associated
communications data) where a RIPA warrant is already
in place for that material, but the material cannot be
collected under the warrant. Any request made in the
absence if a warrant would be exceptional, and would be
decided upon by the Secretary of State personally: see
the Interception Code at para 12.3.
10. As the Tribunal will be well aware, the conditions for
intercepting communications pursuant to a RIPA warrant are
as set out in s.5(3) RIPA. They are the interests of national
security; the prevention or detection of serious crime; or the
safeguarding of the UK’s economic well-being, in
circumstances appearing relevant to the interests of national
security. Those conditions substantially mirror, and are no
narrower than, the statutory functions of the Intelligence
Services under the SSA and ISA. If the victim hurdle is to be
satisfied, the Claimants will need to advance a credible case
that their data could be collected and shared under any of the
conditions in s.5(3) RIPA, the SSA or ISA. Certainly the
assertion that individuals have been involved in campaigning
activities concerning e.g. freedom of expression would be
inadequate to meet that test. Such activities would not give any
grounds for the issue of a warrant for interception of the
Applicants’ communications under s.5(3) RIPA. Nor, by the
same token, would they give grounds for intelligence sharing
without a warrant in pursuance of the Intelligence Services’
statutory functions.