MR JUSTICE BURTON
Approved Judgment
Human Rights Watch & Ors v SoS for the Foreign &
Commonwealth Office & Ors
11. In those circumstances the Tribunal’s determinations and
declarations in the Liberty/Privacy proceedings provide the
appropriate remedy in relation to the Intelligence Sharing
Regime and unless the Claimants are able to establish that they
have victim status none of them are entitled to individual casespecific examination.”
26.
Mr Jaffey accepted that, subject to any challenge hereafter, although there was a
potential distinction resulting from this Tribunal’s conclusion in Liberty/Privacy, the
s.8(4) RIPA regime had been lawful throughout but that any information-sharing in
respect of Prism/Upstream would have been unlawful prior to 5 December 2014,
nevertheless it could be inferred, by virtue of the making of no determination in the
Liberty/Privacy case, that there had been no such information-sharing prior to that
date in respect of any of the claimants in that case. He also accepted that there was a
distinction between any case now sought to be made by an individual claimant with
regards to Prism/Upstream and one relating to the s.8(4) RIPA regime, by virtue of
the necessarily targeted nature of the former, as explained above. Nevertheless he
submitted that if there were non-US persons who might be of interest to GCHQ,
Prism/Upstream might be a source of obtaining information about them.
27.
It is quite clear to us in the circumstances that a case of belief by a claimant that he
may be subject to information-sharing pursuant to Prism/Upstream is far more
difficult to establish than a claimant’s belief as to interception pursuant to the s.8(4)
RIPA regime, which, as explained in Liberty/Privacy, relates to the interception of
communications as a result of an untargeted warrant pursuant to s.8(4) RIPA.
Nevertheless as far as the s.8(4) RIPA regime also is concerned, issue is joined
between the parties as to whether what is contained in the standard form is sufficient.
28.
The primary stance taken by the Respondents (paragraph 13 of their Preliminary
Submissions dated 9 December 2015 (“the Respondents’ Submissions”)) is that the
applications raise no new issues of law, the issues they raise having been
comprehensively and conclusively addressed in the Liberty/Privacy proceedings, and
that there is no proper basis upon which detailed individual investigations need to be
carried out in response to the Privacy International campaign. The case is expanded
as follows in those Submissions:“15. It is clear from the standard template Statement of
Grounds which is being used by all of the new complainants
that the legal issues are identical to those which were
considered in Liberty/Privacy, namely the legality of the
intelligence sharing regime and the legality of the interception
regime. Indeed, as expressly noted at §4 of the Grounds, the
Tribunal has already given a declaration on the historic
lawfulness of the intelligence sharing regime in
[Liberty/Privacy No 2]. Consequently there are no new legal
issues which these standard-form complaints seek to have
determined.
16. For the avoidance of doubt, it is the Respondents’ position
that the Grounds are to be read as confined to the legal issues
as determined in Liberty/Privacy. Although paragraph 6 of the