CHAPTER 6: POWERS AND SAFEGUARDS
set out in Annex 6 to this Report, and IOCCO cannot and does not review that process.
As a result, there is far less transparency concerning those processes.
The Investigatory Powers Tribunal
6.105. The IPT hears complaints about conduct in connection with the interception of
communications and gathering of communications data (by all authorities, not just the
security and intelligence agencies).115 It also has jurisdiction to determine complaints
under HRA 1998 s7 in respect of the actions of the security and intelligence
agencies.116 The IPT is established under RIPA, but its role and remit goes beyond it.
6.106. For some years after its establishment in October 2000, and despite its distinguished
membership, the IPT was a little-known body. Its rules prohibited the holding of public
hearings, and public judgments were rare. Its profile as a robust scrutiny mechanism
was not assisted by the fact that out of the 1,673 complaints determined by the end of
2013, only 10 were upheld – five of them involving members of the same family, and
none of them against the security and intelligence agencies.117 This is not a criticism
of the IPT, whose members are drawn from the upper reaches of the judiciary and
legal profession. But coupled with the opaque procedures provided for in the IPT’s
rules, it did not promote public confidence in, or even knowledge of, the institution.
6.107. The IPT’s journey out of the shadows began in January 2003, when it authorised its
first open hearing (in a complaint concerning a possible RIPA Article 8(1) warrant),
notwithstanding the rule that its proceedings had to be conducted in private.118 Other
rules (concerning restrictions on disclosure and evidence, secrecy of proceedings and
the non-provision of reasons to unsuccessful complainants) continued to be contested
as contrary to the principle of equality of arms, guaranteed by Article 6 of the ECHR.
But in its Kennedy judgment of May 2010, the ECtHR concluded that the procedures
of the IPT did not violate Article 6. It emphasised, in doing so:
“the breadth of access to the IPT enjoyed by those complaining about
interception within the United Kingdom and the absence of any evidential
burden to be overcome in order to lodge an application with the IPT.”119
The European Court thereby accepted that once general legal issues have been
determined in public, any consideration of the specific facts of the case will take place
in private and without the participation of the complainant.120
6.108. Even prior to the Snowden revelations, the IPT had in British Irish Rights Watch ruled
in an open judgment that the provisions for intercepting and accessing material
115
116
117
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RIPA s65(5).
RIPA s65(2)(a).
Interception of Communications Commissioner Annual Report 2013; subsequent figures on IPT website.
According to the IPT’s website, around half of the complaints received in recent years have been
adjudged “frivolous or vexatious” under RIPA s67(4): http://www.ipt-uk.com/section.aspx?pageid=5.
IPT/01/62 and IPT/01/77 Kennedy, ruling of 23 January 2003. The hearing, on issues of legal principle,
was held in July 2004: IPT/01/62, ruling of 9 December 2004.
Application no. 26839/05 Kennedy v United Kingdom, Judgment of 18 May 2010, para 190.
Ibid., para 98.
121