MR JUSTICE BURTON
Approved Judgment
Human Rights Watch & Ors v SoS for the Foreign &
Commonwealth Office & Ors
not comply with UK law, could not amount to a breach of the two Claimants’ right to
respect for their private life.
59.
Mr Jaffey focussed on the Article 8 right to respect for “correspondence”. The
interception of telephone calls and the interception and seizure of electronic mail
amount to an interference with “correspondence”: Lüdi v Switzerland [1992] 15
EHRR 173 paragraph 39 and Wiser and Bicos Betiligungen v Austria [2008] 46
EHRR 54 at paragraph 45. Whether or not interception of electronic mail or
telephone calls which happen to pass by cable or airwave through the territory of a
contracting state sent or made to and received by persons outside the United Kingdom
are within the scope of Article 1 is a moot point. It was raised as an objection by the
German Government in Weber. The Court did not consider it necessary to rule on
the issue: paragraph 72 of its Judgment. In Liberty v UK two of the claimants were
Irish NGO’s and the point was not taken or addressed.
60.
Our view is that a contracting state owes no obligation under Article 8 to persons both
of whom are situated outside its territory in respect of electronic communications
between them which pass through that state. Further, and in any event, as a UK
tribunal we are obliged by domestic law not to do more than to keep pace with the
Strasbourg jurisprudence: R (Ullah) v Special Adjudicator [2004] 2 AC 323 at
paragraph 20 per Lord Bingham and Smith v Ministry of Defence [2014] AC 52 at
paragraph 44 per Lord Hope. We are also not persuaded that a privacy right is, as Mr
Jaffey contended, a right of action present in the jurisdiction, and that too would
similarly be extending the bounds of the UK Courts’ jurisdiction under Article 8.
61.
For those reasons, we are satisfied that the two Claimants’ human rights claims cannot
succeed, because they are claims about matters which are outside the scope of the
ECHR, alternatively, because it has not been established by the jurisprudence of the
ECtHR that they clearly are within it.
62.
Consequently, we dismiss, on the ground that the Tribunal has no jurisdiction, the
human rights claims made in their T1 forms by G and by Mr Weider, but Mr Eadie
has accepted that he cannot resist the claims made by them in respect of their T2
form, insofar as the Claimants, albeit abroad, make claims otherwise than by
reference to the Human Rights Act in respect of conduct that might turn out to have
been committed in the UK, with regard to the result and treatment of any intercepted
information.
63.
So far as concerns the human rights claims in their T1 forms in respect of the other
three US residents who (as appears in paragraph 10 above), form part of the Six, the
same would apply, as it would to all of the 663, save for the 294 resident in the United
Kingdom.
The Tribunal’s conclusions
64.
Accordingly the Tribunal will direct enquiries in respect of the Six (with the
exception of the T1 forms of G and Mr Weider, and of any claims in respect of
Prism/Upstream by Mr Weider). In respect of all the other Claimants the Tribunal
will send a copy of this judgment to their identified addresses, notifying all of those
Claimants save those resident in the United Kingdom (“non-UK Claimants”) that their
T1 Form claims are dismissed for lack of jurisdiction. In respect of the UK