4
LIBERTY AND OTHERS v. THE UNITED KINGDOM JUDGMENT
12. On 13 August 2001 the applicants began proceedings in the IPT
against the security and intelligence agencies of the United Kingdom,
complaining of interferences with their rights to privacy for their telephone
and other communications from 2 October 2000 onwards (British-Irish
Rights Watch and others v. The Security Service and others, IPT/01/62/CH).
The IPT, sitting as its President and Vice-President (a Court of Appeal and a
High Court judge), had security clearance and was able to proceed in the
light not just of open evidence filed by the defendant services but also
confidential evidence, which could not be made public for reasons of
national security.
13. On 9 December 2004 the IPT made a number of preliminary rulings
on points of law. Although the applicants had initially formulated a number
of claims, by the time of the ruling these had been narrowed down to a
single complaint about the lawfulness of the “filtering process”, whereby
communications between the United Kingdom and an external source,
captured under a warrant pursuant to section 8(4) of the 2000 Act (which
had replaced section 3(2) of the 1985 Act: see paragraphs 34-39 below),
were sorted and accessed pursuant to secret selection criteria. The question
was, therefore, whether “the process of filtering intercepted telephone calls
made from the UK to overseas telephones ... breaches Article 8 § 2 [of the
Convention] because it is not ‘in accordance with the law’”.
14. The IPT found that the difference between the warrant schemes for
interception of internal and external communications was justifiable,
because it was more necessary for additional care to be taken with regard to
interference with privacy by a Government in relation to domestic
telecommunications, given the substantial potential control it exercised in
this field; and also because its knowledge of, and control over, external
communications was likely to be much less extensive.
15. As to whether the law was sufficiently accessible and foreseeable for
the purposes of Article 8 § 2, the IPT observed:
“The selection criteria in relation to accessing a large quantity of as yet unexamined
material obtained pursuant to a s8(4) warrant (as indeed in relation to material
obtained in relation to a s8(1) warrant) are those set out in s5(3) . The Complainants’
Counsel complains that there is no ‘publicly stated material indicating that a relevant
person is satisfied that the [accessing] of a particular individual’s telephone call is
proportionate’. But the Respondents submit that there is indeed such publicly stated
material, namely the provisions of s6(l) of the Human Rights Act which requires a
public authority to act compatibly with Convention rights, and thus, it is submitted,
imposes a duty to act proportionately in applying to the material the s5(3) criteria.
To that duty there is added the existence of seven safeguards listed by the
Respondents’ Counsel, namely (1) the criminal prohibition on unlawful interception
(2) the involvement of the Secretary of State (3) the guiding role of the Joint
Intelligence Committee (‘JIC’) (4) the Code of Practice (5) the oversight by the
Interception of Communication Commissioner (whose powers are set out in Part IV of
the Act) (6) the availability of proceedings before this Tribunal and (7) the oversight