MR JUSTICE BURTON
Approved Judgment
32.
Human Rights Watch & Ors v SoS for the Foreign &
Commonwealth Office & Ors
The second submission by the Respondents is that the core purpose of these
proceedings is to reveal the extent of the Agencies’ knowledge, and thus evade the
key principle of Neither Confirm Nor Deny, which is enshrined in the answer required
by s.68(4) of RIPA namely:“Where the Tribunal determine any proceedings, complaint or
reference brought before or made to them, they shall give
notice to the complainant which (subject to any rules made by
virtue of section 69(2)(i)) shall be confined, as the case may be,
to either(a) a statement that they have made a determination in his
favour; or
(b) a statement that no determination has been made in his
favour.
33.
They set out this case in paragraphs 31-35 of the Respondents’ Submissions:“31. This campaign is a very deliberate attempt on the part of
individuals to find out whether the intelligence agencies hold
information on them. In circumstances where the legality of
the relevant regimes has already been addressed, that can be
the only purpose of the complaints, as is wholly borne out by
the statements made in the public campaign which has
generated these complaints.
32. The Respondents have, in the past, expressed considerable
concern about the prospect of the Tribunal’s remedial
discretion being used in such a way that would permit
individuals (including current investigative targets) to discover
whether they have been the subject of interception (as noted in
the Belhadj IPT proceedings – see judgment dated 29 April
2015). For example, interception is one of the most sensitive
and important forms of intelligence gathering and one which
cannot work if the subject of the interception is aware that his
communications are being intercepted and examined: see e.g.
Weber… at §93 and §135. Revelation of such information
could cause targets of interest to change their behaviour, with
the obvious impact this could have on continued intelligence
gathering. In addition it is to be noted that these complaints
seek to discover whether intelligence information may have
been shared with GCHQ by the NSA prior to the Tribunal’s
December 2014 judgment. So not only does this affect the
ability of domestic intelligence agencies to keep such
information secret, but it also could potentially compromise the
NSA and its intelligence gathering activities, with a consequent
impact on the intelligence relationship between the UK and the
US.