BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
IV. DOMESTIC PROCEEDINGS IN THE THIRD OF THE JOINED
CASES
28. The ten human rights organisations which are the applicants in the
third of the joined cases (application no. 24960/15) each lodged a complaint
before the IPT between June and December 2013 (hereinafter “the Liberty
proceedings”). They alleged that the intelligence services, the Home
Secretary and the Foreign Secretary had acted in violation of Articles 8, 10,
and 14 of the Convention by: (i) accessing or otherwise receiving
intercepted communications and communications data from the United
States Government under the PRISM and Upstream programmes
(“the PRISM issue”); and (ii) intercepting, inspecting and retaining their
communications and their communications data under the TEMPORA
programme (“the section 8(4) issue”).
29. On 14 February 2014, the IPT ordered that the ten cases be joined. It
subsequently appointed Counsel to the Tribunal (see paragraph 132 below),
whose function was to assist the IPT in whatever way it directed, including
by making representations on issues in relation to which not all parties
could be represented (for example, for reasons of national security).
30. In their response to the applicants’ claims, the Government adopted
a “neither confirm nor deny” approach, that is to say, they declined to
confirm or deny whether the applicants’ communications had actually been
intercepted. It was therefore agreed that the IPT would determine the legal
issues on the basis of assumed facts to the effect that the NSA had obtained
the applicants’ communications and communications data via PRISM or
Upstream and had passed them to GCHQ, where they had been retained,
stored, analysed and shared; and that the applicants’ communications and
communications data had been intercepted by GCHQ under the TEMPORA
programme and had been retained, stored, analysed and shared. The
question was whether, on these assumed facts, the interception, retention,
storage and sharing of data was compatible with Articles 8 and 10, taken
alone and together with Article 14 of the Convention.
A. The hearing
31. The IPT, composed of two High Court Judges, a Circuit Judge and
two senior barristers, held a five-day, public hearing from 14-18 July 2014.
The Government requested an additional closed hearing in order to enable
the IPT to consider GCHQ’s unpublished – described during the public
hearing as “below the waterline” – internal arrangements for processing
intercept material. The applicants objected, arguing that the holding of a
closed hearing was not justified and that the failure to disclose the
arrangements to them was unfair.
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