AMENDED OPEN DETERMINATION
1.
These are the determinations made by the Tribunal in these proceedings in
accordance with s.68(4) of the Regulation of Investigatory Powers Act 2000
(“RIPA”).
2.
The Tribunal has addressed the following, as the only matters left after the
resolution of the issues in the Liberty proceedings by its Judgments of 5 December
2014 (“the December Judgment”) and of 6 February 2015, and in doing so the
Tribunal has applied its guidance in its Judgment in Belhadj & Ors [2015]
UKIPTrib 13_132-H (“the Belhadj Judgment”):
(i) Whether in fact there has been, prior to 18 November 2014, soliciting,
receiving, storing and transmitting by UK authorities of private
communications of the Claimants which have been obtained by the US
authorities pursuant to Prism and/or Upstream in contravention of Articles 8
and/or 10 ECHR as declared to be unlawful by the Tribunal’s order of 6
February 2015.
(ii) Whether in fact the Claimants’ communications have been intercepted
pursuant to s.8(1) or s.8(4) of RIPA, and intercepted, viewed, stored or
transmitted so as to amount to unlawful conduct and/or in contravention of
and, not justified by, Articles 8 and/or 10 ECHR. In this regard questions of
proportionality arise, and the Tribunal has taken fully into account the
submissions made by the Claimants and the Respondents.
3.
Those submissions, for which the Tribunal is grateful, have enabled it to take into
account questions relating to both generic (or ‘systemic’) questions and those
relating to the individual claimant and its communications:
(i)
The Tribunal has carefully considered and followed the guidance of
both Lord Sumption and Lord Reed in Bank Mellat v HM Treasury
(No.2) [2014] AC 700 at paragraphs 20 and 74, as to how the issue of
proportionality should be approached.
(ii)
It has also considered and taken into account the words of Lord
Sumption in R (Lord Carlile) v Home Secretary [2014] 3 WLR
1404 at paragraphs 32-34, adopting the words of Lord Hoffmann in
Secretary of State for the Home Department v Rehman [2003] 1
AC 153, Lord Bingham in A v Secretary of State for the Home
Department [2005] 2 AC 68 and Laws LJ in R (Al-Rawi) v
Secretary of State for Foreign & Commonwealth Affairs [2008]
QB 289 as to the approach by the Courts to decisions of the
Executive.
(iii)
The Tribunal has also found it useful and important to ask itself in the
course of its consideration the following questions (derived from an
amalgam and adaptation of the submissions of Mr Ryder QC and Mr
Tomlinson QC):