MR JUSTICE BURTON
Approved Judgment
Human Rights Watch & Ors v SoS for the Foreign &
Commonwealth Office & Ors
Mr Justice Burton:
1.
This is the judgment of the Tribunal.
2.
This has been a hearing in respect of the complaints by ten Claimants, including
Human Rights Watch (“the Ten”). It arises out of a worldwide campaign by Privacy
International, which was a party to proceedings before the Tribunal, which resulted in
two Judgments, Liberty/Privacy Nos 1 and 2 [2015] 1 Cr. App. R 24, [2015] 3 All
ER 142, 212. The campaign resulted from those two Judgments, and from an Open
Determination made by the Tribunal dated 22 June 2015 (amended 2 July)
(Liberty/Privacy No 3)
3.
Those Judgments dealt with two sets of assumed facts: first as to the existence of
intelligence-sharing with GCHQ of information obtained in respect of non-US
citizens by the US intelligence services, as a result of two programmes named
“Prism” and “Upstream”, and secondly as to the use of warrants pursuant to s.8(4) of
the Regulation of Investigatory Powers Act 2000 (“RIPA”) in respect of a system
called Tempora, whereby communications were allegedly intercepted and gathered
and could be accessed by the UK intelligence services. As to Prism and Upstream,
the Tribunal left open two issues at the end of the first hearing and judgment, and
then, after a further hearing, in Liberty/Privacy No 2 concluded and declared that,
prior to the disclosures by the Respondents made and referred to in the Tribunal’s
Judgments in Liberty/Privacy No 1 and Liberty/Privacy No 2, the Prism and/or
Upstream arrangements contravened Articles 8 and/or 10 of the European Convention
of Human Rights (“ECHR”), but that they now complied. As to Tempora, being the
(assumed) system operated pursuant to s.8(4) warrants, the Tribunal was satisfied, and
declared, that such regime was lawful and compliant with the ECHR.
4.
In Liberty/Privacy No 3 the Tribunal published its conclusions, after considering all
appropriate information in Closed session, as to:“Whether in fact there has been, prior to 18 November 2014,
soliciting, receiving, storing and transmitting by UK authorities
of private communications of the Claimants which have been
obtained by the US authorities pursuant to Prism and/or
Upstream in contravention of Article 8 and/or 10 ECHR as
declared to be unlawful by the Tribunal’s order of 6 February
2015.
Whether in fact the Claimants’ communications have been
intercepted pursuant to s.8(1) or s.8(4) of RIPA, and
intercepted, viewed, stored or transmitted so as to amount to
unlawful conduct and/or in contravention of and, not justified
by, Articles 8 and/or 10 ECHR.”
5.
The Tribunal recorded at paragraph 14 that in respect of one of the claimants,
Amnesty International Ltd (“Amnesty”), we had found that its email communications
were lawfully and proportionally intercepted and accessed pursuant to s.8(4) of RIPA,
but that the time limit for retention, permitted under the internal policies of GCHQ,
the intercepting agency, was overlooked in respect of the product of that interception,