MR JUSTICE BURTON
Approved Judgment
Human Rights Watch & Ors v SoS for the Foreign &
Commonwealth Office & Ors
44.
We are satisfied that there was not, as Mr Jaffey sought to allege, some kind of
systemic or wide-ranging failure by the Respondents by virtue of what was disclosed
in Liberty/Privacy No 3. There were, as described in paragraphs 5 and 6 above, two
relatively minor breaches of procedure, as described. That is not to say that other
complaints may not on investigation be justified. It is not however our role, as it is
that of the Commissioners, to supervise and oversee the performance of the Agencies.
Our role is to investigate individual complaints that are made to us, after establishing
the legal framework which is to apply to them. We are a tribunal dedicated towards
an efficient disposal of claims by those who have grounds of some kind for belief that
their communications are being intercepted, as opposed to being a recipient of
possibly hundreds or thousands of applications from people who have no such basis
other than the mere existence of the legislation. We reported the position as recorded
in Liberty/Privacy No 3 both to the Commissioners and also, pursuant to our
obligation under s.68(5) of RIPA, to the Prime Minister; and would so report any
further breaches we might find pursuant to any similar complaint.
45.
The standard forms as used by all the Claimants do record a belief that the
Respondents “have and/or continued to intercept, solicit, access, obtain, process, use,
store and/or retain” their information and/or communications, though they result
from a website in which Privacy International, having asked the obvious question as
to whether the reader has “ever made a phone call, sent an email or … used the
internet” then invites them to “try and find out if GCHQ illegally spied on you”. It is
difficult if not impossible to distinguish between a ‘fishing expedition’ and such an
asserted general belief as in the standard claim form. In the course of his always
eloquent submissions, Mr Jaffey suggested that the Six are “exactly the kind of people
who might well properly ask the IPT to investigate whether or not they have been the
victims of unlawful conduct.” That may be so, but it is impossible even to suggest the
same as to the remainder of the 663.
46.
We are satisfied that the appropriate test for us to operate, which would accord with
Zakharov and our obligations under RIPA, is whether in respect of the asserted belief
that any conduct falling within subsection s.68(5) of RIPA has been carried out by or
on behalf of any of the Intelligence Services, there is any basis for such belief; such
that the “individual may claim to be a victim of a violation occasioned by the mere
existence of secret measures or legislation permitting secret measures only if he is
able to show that due to his personal situation, he is potentially at risk of being
subjected to such measures.” (Zakharov at 171). This continues to be the low
hurdle for a claimant that this Tribunal has traditionally operated.
47.
We are persuaded that, in relation to the Six, whose circumstances we have set out in
paragraph 11 above, they satisfy such a requirement for consideration by the Tribunal,
and investigation by the Agencies, in respect of the s.8(4) RIPA regime and, with a
considerable element of doubt, also in respect of Prism/Upstream, save in respect of
the US citizen Mr Wieder. Subject to what we say below in relation to the question of
jurisdiction, we would direct enquiries to be made in respect of the Six. But we are
entirely satisfied that there is insufficient information in the standard form which is
being used by all the other 657 Claimants (including the rest of the Ten) to justify
such a course, though we shall carefully address in due course whether the seventeen
referred to in paragraph 12 above have added anything material to the standard form,