2013 Annual Report of the Interception of Communications Commissioner
Appendix 1: Decision of the Investigatory Powers
Tribunal about section 8(4) of RIPA 2000
The Investigatory Powers Tribunal (IPT) is a tribunal established by section 65 of RIPA
2000. It is the only appropriate tribunal for the purposes of section 7 of the Human
Rights Act 1998 for proceedings under section 7(1)(a) of the 1998 Act against any of
the intelligence services (see section 65(2)(a) and (3) of RIPA 2000). There is no appeal
against determinations of the Tribunal and their decisions may not be questioned in any
court (section 67(8)). Their decisions may be regarded in effect as binding authority.
The Interception of Communications Commissioner has no function in relation to the
Tribunal and is not made aware of any of their unpublished deliberations, except that,
by section 57(3) of RIPA 2000, the Commissioner is obliged to give the Tribunal all such
assistance as the Tribunal may require for their investigations or determinations. I
personally have not been asked so far to assist the Tribunal and I am not aware that my
predecessors have been asked in the recent past.
Decision (IPT/01/77). On 9th December 2004, in Open Rulings on a Preliminary Issues of
Law, the Tribunal considered the lawful integrity of section 8(4) of RIPA 2000. Eventually,
the Tribunal considered and determined one issue only. But it is evident from the decision
that the complainants, who were represented by leading counsel, had initially raised (but
abandoned) other issues. I do not know (other than by possible inference) what those
other issues were, nor do I have access to the underlying facts which were alleged. But I
imagine that leading counsel would have been instructed to pursue other issues if it had
been thought that they were viable.
The issue which the Tribunal did examine was
“... the lawfulness of the “filtering process” relating to material obtained pursuant to a
warrant issued under section 8(4) of [RIPA 2000].” (paragraph 4 of the Ruling).
The challenge was that there were no published selection criteria for the operation of a
section 8(4) warrant and that the section 8(4) process was therefore not “in accordance
with law” for the purpose of Article 8 of the Human Rights Convention.
The Tribunal rejected this contention with detailed reference to a number of cases
containing relevant human rights jurisprudence. They accepted the case advanced on
behalf of the respondents (the three Intelligence Services) that
“the scope and manner of exercise of the powers to intercept communications and make
use of the information obtained are indicated with a requisite degree of certainty to
satisfy the minimum requirements ... “ Christie v United Kingdom [1993] 78-ADR 119 at
133ff.
The respondent’s submissions proceeded
“... by reference to the criteria in section 5(3), as exercised with proportionality and the
existence of the multiple safeguards”. (Rulings paragraph 38).
The final paragraph 39 of the Rulings is as follows:
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