BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
32. The request for a closed hearing was granted pursuant to Rule 9 of
the IPT’s Rules of Procedure (see paragraph 129 below). On 10 September
2014 a closed hearing took place at which the IPT was “assisted by the full,
perceptive and neutral participation ... of Counsel to the Tribunal”, who
performed the following roles: (i) identifying documents, parts of
documents or gists that ought properly to be disclosed; (ii) making such
submissions in favour of disclosure as were in the interests of the Claimants
and open justice; and (iii) ensuring that all the relevant arguments (from the
Claimants’ perspective) on the facts and the law were put before the IPT.
33. In the closed hearing, the IPT examined the internal (“below the
waterline”) arrangements regulating the conduct and practice of the
intelligence services. On 9 October 2014 it notified the applicants that it
was of the view that there was some closed material which could be
disclosed. It explained that it had invited the Government to disclose the
material and that the Government had agreed to do so. The material was
accordingly provided to the applicants in a note (“the 9 October disclosure”)
and the parties were invited to make submissions to the IPT on the disclosed
material.
34. The applicants sought information on the context and source of the
disclosure but the IPT declined to provide further details. The applicants
made written submissions on the disclosure.
35. The respondents subsequently amended and amplified the disclosed
material.
36. Following final disclosures made on 12 November 2014, the
9 October disclosure provided as follows:
“The US Government has publicly acknowledged that the Prism system and
Upstream programme ... permit the acquisition of communications to, from, or about
specific tasked selectors associated with non-US persons who are reasonably believed
to be located outside the United States in order to acquire foreign intelligence
information. To the extent that the Intelligence Services are permitted by the
US Government to make requests for material obtained under the Prism system
(and/or ... pursuant to the Upstream programme), those requests may only be made for
unanalysed intercepted communications (and associated communications data)
acquired in this way.
1. A request may only be made by the Intelligence Services to the government of a
country or territory outside the United Kingdom for unanalysed intercepted
communications (and associated communications data), otherwise than in accordance
with an international mutual legal assistance agreement, if either:
a.
a relevant interception warrant under [RIPA] has already been issued by the
Secretary of State, the assistance of the foreign government is necessary to
obtain the communications at issue because they cannot be obtained under the
relevant RIPA interception warrant and it is necessary and proportionate for the
Intelligence Services to obtain those communications; or
b.
making the request for the communications at issue in the absence of a relevant
RIPA interception warrant does not amount to a deliberate circumvention of
RIPA or otherwise contravene the principle established in Padfield v. Minister
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