MR JUSTICE BURTON
Approved Judgment
governing the soliciting, receiving, storing and
transmitting by UK authorities of private communications
of individuals located in the UK which have been
obtained by US authorities.
(ii)
A declaration that the soliciting, receipt, storage and
transmission of such information by the Security Service,
the Secret Intelligence Service and/or GCHQ is unlawful.
(iii) An order that the Security Service, the Secret Intelligence
Service and/or GCHQ will not solicit, receive, store or
transmit such information unless and until such activities
are governed by a legal regime which satisfies ECHR Art
8 and 10 and will destroy any material unlawfully
obtained.”
17.
It is common ground that RIPA is not applicable to a case where there has not been
interception of communications by the Respondents, but receipt of intercepted
communications by the Respondents from the NSA derived from Prism or
Upstream, which might, by dint of the degree of coverage by US interception,
include intercepted product of an email which could have been sent and/or received
in the United Kingdom.
18.
The Respondents rely on the following statutory framework to permit them to
receive and use such information:
i)
S.1 of the Security Service Act 1989 (“SSA”) provides in relevant part:
“(2) The function of [MI5] shall be the protection of national security and,
in particular, its protection against threats from espionage, terrorism and
sabotage, from the activities of agents of foreign powers and from actions
intended to overthrow or undermine parliamentary democracy by political,
industrial or violent means.
(3) It shall also be the function of [MI5] to safeguard the economic wellbeing of the United Kingdom against threats posed by the actions or
intentions of persons outside the British Islands.
(4) It shall also be the function of [MI5] to act in support of the activities of
police forces, the National Crime Agency and other law enforcement
agencies in the prevention and detection of serious crime.”
ii)
The operations of MI5 are under the control of the Director-General, who is
appointed by the Secretary of State (s. 2(1) of SSA). By s. 2(2)(a), it is the
duty of the Director-General to ensure:
“. . . that there are arrangements for securing that no information is
obtained by the Service except so far as necessary for the proper discharge
of its functions or disclosed by it except so far as necessary for that purpose
or for the purpose of the prevention or detection of serious crime or for the
purpose of any criminal proceedings. . .”