carrying out surveillance or interception functions. For that reason this summary
states only the essential elements of the Tribunal’s determination.
14.
In respect of the Fourth Claimant in IPT/13/194/CH (Amnesty International Ltd),
the Tribunal has found that email communications of the Claimant were lawfully
and proportionately intercepted and accessed, pursuant to s.8(4) of RIPA. However
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.
We are satisfied however that the product was not accessed after the expiry of the
relevant retention time limit, and the breach can thus be characterised as technical,
though (as recognised by the Tribunal in the Belhadj Judgment) requiring a
determination to be made. Though technical, the breach constitutes both “conduct”
about which complaint may properly be made under s.65 of RIPA and a breach of
Article 8 ECHR. The latter conclusion flows from the fact that retention of
intercept in and of itself constitutes an interference with Amnesty International
Ltd’s Article 8 rights, irrespective of what was done with it thereafter, and from the
fact that such an interference can be justified if and only if it is “in accordance with
the law”. For these purposes “law” includes at least those aspects of GCHQ’s
internal policies – including retention limits – which the Tribunal has identified as
necessary to ensure compliance with Article 8 standards. Therefore, to the extent
set out above, the complaint is upheld and it is declared there has been a breach of
the Claimant’s Article 8 rights. GCHQ is hereby ordered to destroy any of Amnesty
International Ltd’s communications that were retained for longer than the relevant
retention time limit. One hard copy of the documents will be delivered within 7 days
to the Interception of Communications Commissioner, to be retained for a period of
5 years, in case it may be required for any further legal proceedings or inquiry. The
Respondents may only seek to inspect that copy by application to the Tribunal,
which will only be permitted on grounds other than the use of the information for
intelligence purposes. The Tribunal has also required GCHQ to provide within 14
days a closed report confirming that the destruction and deletion of the said
documents has effectively been carried out. In the circumstances described above,
the Tribunal is satisfied that Amnesty International Ltd has not suffered material
detriment, damage or prejudice as a result of the breach, and that the foregoing open
determination constitutes just satisfaction, so there will be no award of
compensation.
15.
In respect of the Sixth Claimant in IPT/13/168-173/CH (The Legal Resources
Centre, South Africa), the Tribunal has found that communications from an email
address associated with the Sixth Claimant were intercepted and selected for
examination pursuant to s.8(4) of RIPA. The Tribunal is satisfied that the
interception was lawful and proportionate and that the selection for examination was
proportionate, but that the procedure laid down by GCHQ’s internal policies for
selection of the communications for examination was in error not followed in this
case. This amounts to “conduct” about which complaint may properly be made
under s.65 of RIPA and the fact that there was interception in those circumstances
constitutes also a breach of Article 8 ECHR, for the same reason as is set out in
paragraph 14 above. Therefore the complaint is upheld and it is declared that that
there has been a breach of the Claimant’s Article 8 rights. The Tribunal is satisfied
that no use whatever was made by the intercepting agency of any intercepted