article 8 rights unless the information holder carries out a scrupulous and
informed assessment of proportionality” (The Christian Institute v The
Lord Advocate [2016] UKSC 51, para 88). As the Applicants explain in
greater detail below, in the absence of any requirement for individualised
reasonable suspicion, it is difficult to see how such a “scrupulous and
informed assessment of proportionality” can be effectively undertaken.
6.
The circumstances in which data obtained may or must be erased
or the records destroyed
182.
As
explained
at
paragraph
44(6)
of
the
Applicants’
Additional
Submissions, although intercepted material and data must be destroyed
when it is no longer required for the purpose for which it was obtained
under the s8(4) warrant, it is unclear what this means in practice.
183.
The Government points to provisions in the Code of Practice that specify
retention periods “which should normally be no longer than 2 years”
(Observations, §4.54). Yet the lack of effective safeguards to ensure the
prompt destruction of intercepted material is reflected in the judgment of
the IPT in June 2015, which found that the email communications of
Amnesty International had been intercepted and that, “the time limit for
retention permitted under the internal policies of GCHQ, the intercepting
agency, was overlooked in regard to the product of that interception, such
that it was retained for materially longer than permitted under those
policies”.110 No explanation has ever been provided as to how this error
occurred, or how many other people have been affected (none of whom
have been given a remedy). It is not clear whether this was or may have
been a systemic problem. Even if other NGOs and individuals had suffered
the same detriment, it is not clear how they would know of it or potentially
benefit from a remedy unless they decided to blindly bring a claim to the
IPT.
110
The Third IPT Judgment, para 14
71