Judgment Approved by the court for handing down.
Privacy International v Investigatory Powers Tribunal
interception.” Its value to the protection of those who live in the United Kingdom from
individuals engaged in (among other things) terrorist attacks, espionage and serious
organised crime is beyond dispute.
8.
In July 2014, the Claimant, along with others, issued proceedings in the Tribunal
against the Interested Parties. The Claimant challenged various aspects of the
arrangements under which the Agencies were believed to make use of CNE including
the use of thematic warrants. A preliminary hearing took place on points of law on 13 December 2015. At that open hearing, the extent and scope of the use of thematic
warrants in practice was not considered. It was however common ground that GCHQ
had obtained warrants in respect of CNE under section 5 of the 1994 Act.
9.
The Tribunal were asked to rule on ten issues of law. It will help to give an overview
of the hearing before them to set out their conclusions:“Issue 1: An act (CNE) which would be an offence under s.3 of
the CMA is made lawful by a s.5 warrant or s. 7 authorisation,
and the amendment of s. l0 CMA was simply confirmatory of
that fact.
Issue 2: An act abroad pursuant to ss.5 or 7 of the ISA which
would otherwise be an offence under ss.1 and/or 3 of the CMA
would not be unlawful.
Issue 3: The power under s.5 of ISA to authorise interference
with property encompasses intangible property.
Issue 4: A s.5 warrant is lawful if it is as specific as possible in
relation to the property to be covered by the warrant, both to
enable the Secretary of State to be satisfied as to legality,
necessity and proportionality and to assist those executing the
warrant, so that the property to be covered is objectively
ascertainable, and it need not be defined by reference to named
or identified individuals.
Issue 5: There might be circumstances in which an individual
claimant might be able to claim a breach of Article 8/10 rights as
a result of a s.7 authorisation, but that does not lead to a
conclusion that the s.7 regime is non-compliant with Articles 8
or 10.
Issue 6: A s.5 warrant which accords with the criteria of
specification referred to in Issue 4 complies with the safeguards
referred to in [the decision of the European Court of Human
Rights in] Weber (1) to (3), and consequently with Articles 8
and 10 in that regard.
Issue 7: If information were obtained in bulk through the use of
CNE, there might be circumstances in which an individual
complainant might be able to mount a claim, but in principle
CNE is lawful.