those of mass surveillance attract the Convention protection of private life
even more acutely” (§53). The Applicants would submit – apart from the
clear legal remedy afforded by the IPT and its own recognition that it
determines questions of “civil rights” – that the development of covert
surveillance capabilities and the resulting breadth and depth of intrusion
warrant a recognition that Article 6(1) applies “to proceedings concerning a
decision to place a person under surveillance” (Kennedy, §177).
B.
Fairness
280.
The question, therefore, is whether the restrictions in this case, taken as a
whole, were disproportionate or impaired the very essence of the
Applicants’ fair trial rights.
281.
The Applicants say that they did:
(1)
In July 2016 it was discovered that on 15 November 2007, judicial
members of the IPT met with MI5 at its headquarters.139 MI5
explained its existing protocol, the effect of which was that the IPT
would not be told about database holdings concerning any
application to the IPT, save where those holdings had actually been
accessed. The IPT did not dissent from this protocol, which appears
to have been applied ever since.
(2)
It is striking that a meeting of this kind took place at all. It was a
secret meeting, and its existence was not known until the protocol
was disclosed in other proceedings.140 Prior to that, and despite the
present proceedings, no-one apparently thought it necessary to
inform the Applicants about the meeting, still less about the fact
that one of the judges in this case had been present at it (Mr Robert
Reply Annex, no. 34.
Privacy International v Secretary of State for Foreign and Commonwealth Affairs et al.,
IPT/15/110/CH.
139
140
109