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United Kingdom Investigatory Powers Tribunal
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Cite as:  UKIPTrib 14_85-CH
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B e f o r e :
MR JUSTICE MITTING (VICE-PRESIDENT)
MR ROBERT SEABROOK QC
MR CHARLES FLINT QC
THE HON CHRISTOPHER GARDNER QC
|Case No. IPT 14/85/CH|
|- and -
|(1) THE SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS
(2) THE GOVERNMENT COMMUNICATIONS HEADQUARTERS
|Case No. IPT 14/120-126/CH
RISEUP NETWORKS, INC
MANGO EMAIL SERVICE
KOREAN PROGRESSIVE NETWORK ("JINBONET")
MEDIA JUMPSTART, INC
CHAOS COMPUTER CLUB
|- and -
| (1) THE SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS
(2) THE GOVERNMENT COMMUNICATIONS HEADQUARTERS
James Eadie QC, Daniel Beard QC, Kate Grange and Richard O'Brien (instructed by Government Legal Department) for the Respondents
Jonathan Glasson QC, Counsel to the Tribunal (instructed by Government Legal Department)
Hearing dates: 1, 2 and 3 December 2015
Crown Copyright ©
Mr Justice Burton (The President):
"3. The Government Communications Headquarters.
(1) There shall continue to be a Government Communications Headquarters under the authority of the Secretary of State; and, subject to subsection (2) below, its functions shall be -
(a) to monitor or interfere with electromagnetic, acoustic and other emissions and any equipment producing such emissions and to obtain and provide information derived from or related to such emissions or equipment and from encrypted material; and
(b) to provide advice and assistance about—
(i) languages, including terminology used for technical matters, and
(ii) cryptography and other matters relating to the protection of information and other material,
to the armed forces of the Crown, to Her Majesty's Government in the United Kingdom or to a Northern Ireland Department or to any other organisation which is determined for the purposes of this section in such manner as may be specified by the Prime Minister.
(2) The functions referred to in subsection (1)(a) above shall be exercisable only—
(a) in the interests of national security, with particular reference to the defence and foreign policies of Her Majesty's Government in the United Kingdom; or
(b) in the interests of the economic well-being of the United Kingdom in relation to the actions or intentions of persons outside the British Islands; or
(c) in support of the prevention or detection of serious crime.
5 Warrants: general.
(1) No entry on or interference with property or with wireless telegraphy shall be unlawful if it is authorised by a warrant issued by the Secretary of State under this section.
(2) The Secretary of State may, on an application made by . . . GCHQ, issue a warrant under this section authorising the taking, subject to subsection (3) below, of such action as is specified in the warrant in respect of any property so specified or in respect of wireless telegraphy so specified if the Secretary of State -
(a) thinks it necessary for the action to be taken for the purpose of assisting . . .
(iii) GCHQ in carrying out any function which falls within section 3(1)(a) above; and
(b) is satisfied that the taking of the action is proportionate to what the action seeks to achieve;
(c) is satisfied that satisfactory arrangements are in force under section 2(2)(a) of the [Security Service Act 1989 ("the 1989 Act")] (duties of the Director-General of the Security Service), section 2(2)(a) above or section 4(2)(a) above with respect to the disclosure of information obtained by virtue of this section and that any information obtained under the warrant will be subject to those arrangements.
(2A) The matters to be taken into account in considering whether the requirements of subsection (2)(a) and (b) are satisfied in the case of any warrant shall include whether what it is thought necessary to achieve by the conduct authorised by the warrant could reasonably be achieved by other means.
(3) A warrant issued on the application of the Intelligence Service or GCHQ for the purposes of the exercise of their functions by virtue of section . . . 3(2)(c) above may not relate to property in the British Islands.
(3A) A warrant issued on the application of the Security Service for the purposes of the exercise of their function under section 1(4) of the Security Service Act 1989 may not relate to property in the British Islands unless it authorises the taking of action in relation to conduct within subsection (3B) below.
(3B) Conduct is within this subsection if it constitutes (or, if it took place in the United Kingdom, would constitute) one or more offences, and either -
(a) it involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose; or
(b) the offence or one of the offences is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more.
(4) Subject to subsection (5) below, the Security Service may make an application under subsection (2) above for a warrant to be issued authorising that Service (or a person acting on its behalf) to take such action as is specified in the warrant on behalf of the Intelligence Service or GCHQ and, where such a warrant is issued, the functions of the Security Service shall include the carrying out of the action so specified, whether or not it would otherwise be within its functions.
(5) The Security Service may not make an application for a warrant by virtue of subsection (4) above except where the action proposed to be authorised by the warrant—
(a) is action in respect of which the Intelligence Service or, as the case may be, GCHQ could make such an application; and
(b) is to be taken otherwise than in support of the prevention or detection of serious crime
6 Warrants: procedure and duration, etc.
(1) A warrant shall not be issued except—
(a) under the hand of the Secretary of State or in the case of a warrant by the Scottish Minister (by virtue of provision made under section 63 of the Scotland Act 1998), a member of the Scottish Executive; or
(b) in an urgent case where the Secretary of State has expressly authorised its issue and a statement of that fact is endorsed on it, under the hand of a senior official; or
(c) in an urgent case where, the Scottish Ministers have (by virtue of provision made under section 63 of the Scotland Act 1998) expressly authorised its issue and a statement of that fact is endorsed thereon, under the hand of a member of the staff of the Scottish Administration who is in the Senior Civil Service and is designated by the Scottish Ministers as a person under whose hand a warrant may be issued in such a case.
(d) in an urgent case where the Secretary of State has expressly authorised the issue of warrants in accordance with this paragraph by specified senior officials and a statement of that fact is endorsed on the warrant, under the hand of the specified officials.
(1A) But a warrant issued in accordance with subsection (1) (d) may authorise the taking of an action only if the action is an action in relation to property which, immediately before the issue of the warrant, would, if done outside the British Islands, have been authorised by virtue of an authorisation under section 7 that was in force at that time.
(1B) A senior official who issues a warrant in accordance with subsection (1)(d) must inform the Secretary of State about the issue of the warrant as soon as practicable after issuing it."
(2) A warrant shall, unless renewed under subsection (3) below, cease to have effect—
(a) if the warrant was under the hand of the Secretary of State or, in the case of a warrant issued by the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998), a member of the Scottish Executive, at the end of the period of six months beginning with the day on which it was issued; and
(b) in any other case, at the end of the period ending with the second working day following that day.
(3) If at any time before the day on which a warrant would cease to have effect the Secretary of State considers it necessary for the warrant to continue to have effect for the purpose for which it was issued, he may by an instrument under his hand renew it for a period of six months beginning with that day.
(4) The Secretary of State shall cancel a warrant if he is satisfied that the action authorised by it is no longer necessary.
(5) In the preceding provisions of this section "warrant" means a warrant under section 5 above.
. . .
7 Authorisation of acts outside the British Islands.
(1) If, apart from this section, a person would be liable in the United Kingdom for any act done outside the British Islands, he shall not be so liable if the act is one which is authorised to be done by virtue of an authorisation given by the Secretary of State under this section.
(2) In subsection (1) above "liable in the United Kingdom" means liable under the criminal or civil law of any part of the United Kingdom.
(3) The Secretary of State shall not give an authorisation under this section unless he is satisfied -
(a) that any acts which may be done in reliance on the authorisation or, as the case may be, the operation in the course of which the acts may be done will be necessary for the proper discharge of a function of the Intelligence Service or GCHQ; and
(b) that there are satisfactory arrangements in force to secure -
(i) that nothing will be done in reliance on the authorisation beyond what is necessary for the proper discharge of a function of the Intelligence Service or GCHQ; and
(ii) that, in so far as any acts may be done in reliance on the authorisation, their nature and likely consequences will be reasonable, having regard to the purposes for which they are carried out; and
(c) that there are satisfactory arrangements in force under section 2(2)(a) or 4(2)(a) above with respect to the disclosure of information obtained by virtue of this section and that any information obtained by virtue of anything done in reliance on the authorisation will be subject to those arrangements.
(4) Without prejudice to the generality of the power of the Secretary of State to give an authorisation under this section, such an authorisation -
(a) may relate to a particular act or acts, to acts of a description specified in the authorisation or to acts undertaken in the course of an operation so specified;
(b) may be limited to a particular person or persons of a description so specified; and
(c) may be subject to conditions so specified.
(5) An authorisation shall not be given under this section except -
(a) under the hand of the Secretary of State; or
(b) in an urgent case where the Secretary of State has expressly authorised it to be given and a statement of that fact is endorsed on it, under the hand of a senior official.
(6) An authorisation shall, unless renewed under subsection (7) below, cease to have effect -
(a) if the authorisation was given under the hand of the Secretary of State, at the end of the period of six months beginning with the day on which it was given;
(b) in any other case, at the end of the period ending with the second working day following the day on which it was given.
(7) If at any time before the day on which an authorisation would cease to have effect the Secretary of State considers it necessary for the authorisation to continue to have effect for the purpose for which it was given, he may by an instrument under his hand renew it for a period of six months beginning with that day.
(8) The Secretary of State shall cancel an authorisation if he is satisfied that any act authorised by it is no longer necessary.
(9) For the purposes of this section the reference in subsection (1) to an act done outside the British Islands includes a reference to any act which -
(a) is done in the British Islands; but
(b) is or is intended to be done in relation to apparatus that is believed to be outside the British Islands, or in relation to anything appearing to originate from such apparatus;
and in this subsection "apparatus " has the same meaning as in [RIPA].
(a) a person is authorised by virtue of this section to do an act outside the British Islands in relation to property,
(b) the act is one which, in relation to property within the British Islands, is capable of being authorised by a warrant under section 5,
(c) a person authorised by virtue of this section to do that act outside the British Islands, does the act in relation to that property while it is within the British Islands, and
(d) the act is done in circumstances falling within subsection (11) or (12),
This section shall have effect as if the act were done outside the British Islands in relation to that property.
(11) An act is done in circumstances falling within this subsection if it is done in relation to the property at a time when it is believed to be outside the British Islands.
(12) An act is done in circumstances falling within this subsection if it–
(a) is done in relation to property which was mistakenly believed to be outside the British Islands either when the authorisation under this section was given or at a subsequent time or which has been brought within the British Islands since the giving of the authorisation; but
(b) is done before the end of the fifth working day after the day on which the presence of the property in the British Islands first becomes known.
(13) In subsection (12) the reference to the day on which the presence of the property in the British Islands first becomes known is a reference to the day on which it first appears to a member of the Intelligence Service or of GCHQ, after the relevant time–
(a) that the belief that the property was outside the British Islands was mistaken; or
(b) that the property is within those Islands.
(14) In subsection (13) 'the relevant time' means, as the case may be –
(a) the time of the mistaken belief mentioned in subsection (12)(a); or
(b) the time at which the property was, or was most recently, brought within the British Islands."
i) GCHQ carries out CNE within and outside the UK.
ii) In 2013 about 20% of GCHQ's intelligence reports contained information derived from CNE.
iii) GCHQ undertakes both "persistent" and "non-persistent" CNE operations, namely both where an 'implant' expires at the end of a user's internet session and where it "resides" on a computer for an extended period.
iv) CNE operations undertaken by GCHQ can be against a specific device or a computer network.
v) GCHQ has obtained warrants under s.5 and authorisations under s.7, and in relation to the latter had five s.7 class based authorisations in 2014.
i) The 1989 Act (referred to above) by s.3 gave the power to the Security Service ("MI5") to apply for a warrant, which it is common ground could have authorised conduct by GCHQ (whose existence was not at that stage publicly admitted) on its behalf, whereby the Secretary of State could, on an application made by MI5 issue a warrant "authorising the taking of such action as is specified in the warrant in respect of any property so specified" in the circumstances there provided for. This provision was replaced by ISA in 1994.
ii) The Official Secrets Act 1989 makes it an offence for a member of the Security and Intelligence Services by s.1 to disclose information relating to security or intelligence without lawful authority and by s.8 to retain it without lawful authority or fail to take proper care to prevent unauthorised disclosure of it.
iii) A similar provision to safeguard information obtained by any of the Intelligence Services, by limiting its disclosure and use to the proper discharge of any of their functions (including the interests of national security) is in s.19 of the Counter-Terrorism Act 2008.
iv) The provisions of the Data Protection Act 1998 preserve (notwithstanding any exemptions) the obligation on GCHQ to comply with the Fifth and Seventh data protection principles, namely:
"5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes. …
7. Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data."
i) Both parties accepted at this hearing the effect of this Tribunal's conclusions in what have become known as Liberty/Privacy (No.1)  3 All ER 142 and (No.2)  3 All ER 212. It was common ground that all the material decisions of the ECtHR were fully canvassed in Liberty/Privacy (No.1) and their effect set out in that Judgment. The consequence was that there was a great deal less need to refer to the underlying ECtHR Judgments themselves in the hearing before us, and it was common ground that the only material ECtHR decision since Liberty/Privacy is R.E. v United Kingdom (Application No.62498/11), Judgment 27 October 2015, to which we were referred by both sides.
ii) As in Liberty/Privacy, emphasis was placed by the Respondents on the existence of oversight of the security arrangements and procedures by the Intelligence and Security Committee of Parliament ("ISC") and by the Commissioners. In this case the relevant Commissioner is the Intelligence Services Commissioner, Sir Mark Waller, on whose Reports both sides relied. As is to be expected, and will be referred to below, Sir Mark's responsibility included drawing attention to areas which, upon his inspection of the Intelligence Services, he felt could be improved; but there is no doubt, by reference to those Reports, that it continues to be his view, as expressed in his 2013 Report, that "GCHQ's staff continue to conduct themselves with the highest level of integrity and legal compliance". The ISC's latest report of 12 March 2015 is to similar effect.
a) The obtaining of information from a particular device, server or network.
That constituted part of the Respondents' avowals, and consequently was no longer subject to NCND. As to the balance of the original paragraph 6 of the List of Issues:
b) The creation, modification or deletion of information on a device, server or network.
It was accepted at paragraph 46 of Mr Martin's First Statement that CNE could theoretically change the material on a computer, e.g. by way of an implant. In the light of that, coupled with the acceptance generally by GCHQ that it carries out CNE activities, GCHQ accepts that it has avowed the creation (to the extent that the placing of an implant on a device amounts to the creation of information) and modification of information on a device and this is no longer subject to NCND. In addition, whilst GCHQ accepts that creating or modifying information on a server or network could lawfully occur, this is neither confirmed nor denied.
But apart from that, sub-paragraph (b) is neither confirmed nor denied.
c) The carrying out of intrusive surveillance.
This is neither confirmed nor denied, although GCHQ has accepted that the use of CNE techniques may be intrusive.
d) The use of CNE in such a way that it creates a potential security vulnerability in software or hardware, on a server or on a network.
This is not avowed. However it has been accepted that any CNE operations which are carried out by GCHQ are conducted in such a way as to minimise the risk of leaving target devices open to exploitation by others (see paragraph 39 of Mr Martin's First Statement).
e) The use of CNE in respect of numerous devices, servers or networks, without having first identified any particular device or person as being of intelligence interest.
This has been characterised as 'bulk CNE'. The Respondents agree that this could arise pursuant to the powers of GCHQ within the scope of a s.7 authorisation, but neither admit nor deny that it has ever occurred, and Mr Martin in his third witness statement says that it is "simply not correct to assert that GCHQ is using CNE on an indiscriminate and disproportionate scale".
f) The use of CNE to weaken software or hardware at its source, prior to its deployment to users.
This is neither confirmed nor denied.
g) The obtaining of information for the purpose of maintaining or further developing the intelligence services' CNE capabilities.
This is neither confirmed nor denied.
i) The knock-on effect that the very existence of these proceedings has clearly had. We have already noted the fact that the publication of the draft E I Code was on 6 February 2015, revealing for the first time in public the use by GCHQ of CNE and the procedures under which it is to operate (in particular at paragraph 1.9 "Equipment Interference is conducted in accordance with the statutory functions of each Intelligence Service"). That was the same date as the service of the Respondents' Open Response in these proceedings, setting out their case as to CNE. The Claimants have pointed to the fact that within a month after the initiation in May 2014 of these proceedings by Privacy International, by which the Claimants raised the issue as to the import of s.10 of the Computer Misuse Act 1990 ("CMA"), proposed amendments to s.10 were laid before Parliament on 5 June 2014 (as part of the Serious Crime Bill), which have now been enacted. These amendments are said by the Respondents to clarify, but asserted by the Claimants to change, the nature of the un-amended s.10, which forms the basis of the discussion in Issue 1 below, and plainly were also a consequence of these proceedings.
ii) There are now in the public domain what were previously "below the waterline" arrangements (see paragraph 7 in the Liberty/Privacy No.1 judgment) underlying both the Property Code and the E I Code, either redacted or gisted. Whether or not in the event they are determinative in relation to the issues canvassed before us in relation to the question of accessibility or foreseeability under Articles 8 and 10 of the ECHR, it is valuable that they have been produced by the Respondents in these proceedings. This arose as a result of the disclosure sought by the Claimants, and by Counsel to the Tribunal, and requested by the Tribunal.
iii) Simultaneously with the preparation and eventual presentation of this case, there has been the consideration by David Anderson QC, the Independent Reviewer of terrorism legislation, in his Report dated June 2015, and subsequently the draft Investigatory Powers Bill ("the IP Bill") laid before Parliament in November 2015, which in its present form has been before us, both of which plainly drew upon the ideas and submissions which have now been openly canvassed before us.
Issue 1: s.10 CMA
i) S.1 of CMA reads in material part as follows:
"1. Unauthorised access to computer material.
(1) A person is guilty of an offence if—
(a) he causes a computer to perform any function with intent to secure access to any program or data held in any computer, or to enable any such access to be secured;
(b) the access he intends to secure, or to enable to be secured, is unauthorised; and
(c) he knows at the time when he causes the computer to perform the function that that is the case.
(2) The intent a person has to have to commit an offence under this section need not be directed at—
(a) any particular program or data;
(b) a program or data of any particular kind; or
(c) a program or data held in any particular computer.
. . ."
ii) S.3 reads as follows:
"3. Unauthorised acts with intent to impair, or with recklessness as to impairing, operation of computer, etc.
(1) A person is guilty of an offence if -
(a) he does any unauthorised act in relation to a computer;
(b) at the time when he does the act he knows that it is unauthorised; and
(c) either subsection (2) or subsection (3) below applies.
(2) This subsection applies if the person intends by doing the act -
(a) to impair the operation of any computer;
(b) to prevent or hinder access to any program or data held in any computer; or
(c) to impair the operation of any such program or the reliability of any such data; or
(d) to enable any of the things mentioned in paragraphs (a) to (c) above to be done.
(3) This subsection applies if the person is reckless as to whether the act will do any of the things mentioned in paragraphs (a) to (d) to (c) of subsection (2) above.
(4) The intention referred to in subsection (2) above, or the recklessness referred to in subsection (3) above, need not relate to—
(a) any particular computer;
(b) any particular program or data; or
(c) a program or data of any particular kind.
(5) In this section -
(a) a reference to doing an act includes a reference to causing an act to be done;
(b) "act" includes a series of acts;
(c) a reference to impairing, preventing or hindering something includes a reference to doing so temporarily.
. . . "
iii) An act of CNE, insofar as it consists of, for example, removing or replacing information on a computer, would not simply constitute an offence under s.1 but plainly also under s.3 (unless exempt from sanction).
iv) Since 3 May 2015 the amendment to s.10 (referred to in paragraph 11(i) above) makes it clear that a person acting under a s.5 warrant or s.7 authorisation commits an offence neither under s.1 nor under s.3 of the CMA.
So the only issue relates to the period prior to 3 May 2015.
"10. Saving for certain law enforcement powers
Section 1(1) above has effect without prejudice to the operation –
(a) In England and Wales of any enactment relating to powers of inspection, search or seizure; and
(b) In Scotland of any enactment or rule of law relating to powers of examination, search or seizure.
. . ."
Sections 1 to 3A have effect without prejudice to the operation -
(a) in England and Wales of any enactment relating to powers of inspection, search or seizure or of any other enactment by virtue of which the conduct in question is authorised or required; and
(b) in Scotland of any enactment or rule of law relating to powers of examination, search or seizure or of any other enactment or rule of law by virtue of which the conduct in question is authorised or required.
and nothing designed to indicate a withholding of consent to access to any program or data from persons as enforcement officers shall have effect to make access unauthorised for the purposes of any of those sections. In this section—
"enactment" means any enactment, whenever passed or made, contained in—
(a) an Act of Parliament;
(b) an Act of the Scottish Parliament;
(c) a Measure or Act of the National Assembly for Wales;
(d) an instrument made under any such Act or Measure;
(e) any other subordinate legislation (within the meaning of the Interpretation Act 1978)
. . .".
i) The CMA is the 'lex specialis' relating to computer misuse. It governs the position, and there is specific reference in the unamended s.10 to the law enforcement powers which are exempted from the ambit of s.1, and s.3 is left entirely unaffected. When the ISA was enacted in 1994, it could not affect the position, namely that it is only s.1 of the CMA which has effect "without prejudice to the operation in England and Wales of any enactment relating to powers of inspection, search or seizure", and not s.3
ii) There may be good reason for Parliament having so differentiated because:
(a) Parliament is to be taken to have decided that less intrusive operations would be exempted from the ambit of the Act and not the more excessive activity covered by s.3.
(b) It may be that there were concerns that an act which would contravene s.3 might impact upon the reliability of evidence contained in a computer, in the context of its being admitted into evidence in subsequent criminal proceedings (there being no bar on the admission of such evidence, as there is and was in relation to intercept evidence). There is some discussion in Hansard at the time of passage of the bill as to concerns about the position of such evidence.
iii) The 1990 CMA, and its express savings, cannot be impliedly overruled by the subsequent 1994 ISA (see Lord Hope in H v Lord Advocate  1 AC 413 at 436, paragraph 30 as to implied subsequent repeal).
i) The language of ss.5 and 7 of the ISA, set out in paragraph 4 above is in each case clear. No act done pursuant to those sections can be unlawful either civilly or criminally. That plainly includes an act which would otherwise be an offence under s.3 of the CMA.
ii) The 1994 ISA was the 'lex specialis' relating to the Intelligence Agencies. Earlier savings provisions cannot limit the powers given under s.5 and s.7 of ISA. S.10 of CMA (as un-amended) did not purport to be exhaustive: the heading, which is admissible for interpretation, refers to "saving for certain law enforcement powers", and even the words "any enactment relating to powers of inspection, search or seizure" would only appear to be relevant in relation to s.1 of CMA and not necessarily to s.3. In any event s.5 and s.7 post-date the CMA, and expressly authorise and exempt from sanction the relevant conduct, and it would be unthinkable that acts under it, in accordance with GCHQ's express powers under s.3(1)(a), would be unlawful. Ss.5 and 7 are not, and are not relied upon as, an implied repeal of what was only a savings clause in the 1990 Act.
iii) With regard to the 1990 discussion in Hansard, there is no sign that concerns about the admissibility of evidence were discussed in the specific context either of s.3 or of (what became) s.10. In any event it is plain from Hansard that there was an amendment put forward, which would have placed what was called a temporary stop (pending further debate) preventing the Security Service from misusing computers (this would have been pursuant to s.3 of the 1989 Act referred to in paragraph 6(i) above). This amendment ("to prevent hacking or similar activities by the Security Service") was not pressed. It would seem therefore that it was accepted that the 1989 Act, already on the statute book, was not affected by the CMA. A fortiori the subsequent 1994 Act is not either.
"(2) A person secures access [our underlining] to any program or data held in a computer if by causing a computer to perform any function he –
(a) Alters or erases the program or data;
(b) Copies or moves it to any storage medium other than that in which it is held or to a different location in the storage medium in which it is held;
(c) Uses it; or
(d) Has it output from the computer in which it is held (whether by having it displayed or in any other manner).
And references to access to a program or data (and to an intent to secure such access . . .) shall be read accordingly."
Any concern about potential impact on computers for subsequent admissibility purposes would be as live in respect of such a wide definition of s.1 as it would be in respect of s.3.
Issue 2: Territorial jurisdiction in respect of ss.5/7
Issue 3: Intangible property
i) The reference in a document published by Mr Snowden, and exhibited by the Claimants, to there possibly being a s.5 warrant which permitted interference with computer software in breach of copyright and licensing agreements.
ii) The reference in s.5(3), and in s.5(3A) (for MI5), to the inapplicability of certain warrants in respect of "property in the British Islands". Mr Jaffey said that this is an inapt reference if intangible property is intended. But there appears to us to be no answer either to Mr Beard QC's succinct submissions on this topic for the Respondents, including the point that as defined by statute copyright is a collection of rights in respect of the United Kingdom, or to that put by the Tribunal in relation to choses in action such as bank accounts, which again would have a geographical identity.
Issue 4: "Thematic warrants" and the requirement for specification under s.5
"(1) An interception warrant must name or describe either -
(a) one person as the interception subject; or
(b) a single set of premises as the premises in relation to which the interception to which the warrant relates is to take place."
The ISC state in their Report in a section under the heading "Thematic warrants" as follows:
"42. While the very significant majority of 8(1) warrants relate to one individual, in some limited circumstances an 8(1) warrant may be thematic. The term 'thematic warrant' is not one defined in statute. However, the Home Secretary clarified that Section 81 of RIPA defines a person as "[including] any organisation [and] any association or combination of persons", thereby providing a statutory basis for thematic warrants. The Home Secretary explained that "the group of individuals must be sufficiently defined to ensure that I, or another Secretary of State, is reasonably able to foresee the extent of the interference and decide that it is necessary and proportionate"
43. MI5 have explained that they will apply for a thematic warrant "where we need to use the same capability on multiple occasions against a defined group or network on the basis of a consistent necessity and proportionality case . . . rather than [applying for] individual warrants against each member of the group."
There is then discussion by reference to the issue of a s.8(1) warrant in the context of a number of circumstances where it may be appropriate to grant such a warrant by reference to a group linked by a specific intelligence requirement. The thematic reference is obviously because of the wide coverage of an (otherwise specific) s.8(1) warrant by virtue of the broad definition of 'person' in s.8(1).
"Thematic Property Warrants
I have expressed concerns about the use of what might be termed "thematic" property warrants issued under section 5 of ISA. ISA section 7 makes specific reference to thematic authorisations (what are called class authorisation) because it refers "to a particular act" or to "acts" undertaken in the course of an operation. However, section 5 is narrower referring to "property so specified".
During 2014 I have discussed with all the agencies and the warrantry units the use of section 5 in a way which seemed to me arguably too broad or "thematic". I have expressed my view that:
- section 5 does not expressly allow for a class of authorisation; and
- the words "property so specified" might be narrowly construed requiring the Secretary of State to consider a particular operation against a particular piece of property as opposed to property more generally described by reference for example to a described set of individuals.
The agencies and the warrantry units argue that ISA refers to action and properties which "are specified" which they interpret to mean "described by specification". Under this interpretation they consider that the property does not necessarily need to be specifically identified in advance as long as what is stated in the warrant can properly be said to include the property that is the subject of the subsequent interference. They argue that sometimes time constraints are such that if they are to act to protect national security they need a warrant which "specifies" property by reference to a described set of persons, only being able to identify with precision an individual at a later moment.
I accept the agencies' interpretation is very arguable. I also see in practical terms the national security requirement.
The critical thing however is that the submission and the warrant must be set out in a way which allows the Secretary of State to make the decision on necessity and proportionality."
It is plainly from this passage that Mr Jaffey has drawn the basis for his submissions set out below, and which have led to the formulation of Issue 4.
i) The common law sets its face against general warrants, as is well known from the seminal Eighteenth Century cases such as Entick v Carrington  2 Wilson KB 275,  EWHC KB J98 and Money v Leach  3 Burr 1742. As for statute law, he relies on Lord Hoffmann in R v
Secretary of State for the Home Department, Ex p Simms  2 AC 115 at 131: "Fundamental rights cannot be overridden by general or ambiguous words". Thus he takes as a starting point that such words as were disapproved in the warrant in Money v Leach, relating to searching for and seizing the papers of the authors, printers and publishers of the North Briton (wheresoever found), should not be permitted pursuant to a s.5 warrant, or that a s.5 warrant should not be defined so as to permit "any property so specified" to include such a provision.
ii) He contrasts the provision in s.5(2) for a warrant "in respect of any property so specified" with the authorisation provided for in s.7, only available in respect of acts outside the British Islands, which by s.7(4) "may relate to a particular act or acts, to acts of a description specified in the authorisation or to acts undertaken in the course of an operation so specified". This latter is, and was described by the Intelligence Services Commissioner in the passage from his Report quoted above as, a 'class authorisation'. It relates effectively to any operation carried out abroad by the Agencies: and there is provision within the E I Code (paragraphs 7.11-7.14) for situations where, because "an authorisation under section 7 may relate to a broad class of operations" (7.11), "Where an authorisation relating to a broader class of operations has been given by the Secretary of State under section 7, internal approval to conduct operations under that authorisation in respect of equipment interference should be sought from a designated senior official"(7.12). Mr Jaffey submits that this emphasises the difference between a s.7 authorisation and a s.5 warrant. The former can authorise a broader class of operation, but is subject to specific subsequent approvals, whereas the latter is not subject to any such protective or limiting provision.
iii) Mr Jaffey accepts that the property specified in a s.5 warrant may include a reference to more than one person or more than one place, up to an unlimited number, provided they are properly specified. But he submits that it must not extend to authorising an entire operation or suite of operations, and that identification cannot depend upon the belief, suspicion or judgment of the officer acting under the warrant. It must also be possible to identify the property/equipment at the date of the warrant. Thus a warrant permitting CNE in respect of computers owned or used by any diplomatic representatives of the State of Ruritania, or by any member of a named proscribed organisation, is not adequate because (i) who they are is thus left open (unless a list of names is provided to be attached to the warrant); (ii) it is not limited to those who are part of that group at the time of the warrant; (iii) it leaves too much to the belief, suspicion or judgment of the officer, and deprives a Secretary of State of the opportunity to exercise his required discretion as to the necessity and proportionality of the warrant. Mr Jaffey submitted (Day 2/12) that the Secretary of State had to consider before granting a warrant whether or not such intrusion would be justified in the case of each individual.
iv) Mr Jaffey had made reference to Hansard in respect of discussion in Parliament in 1989, prior to the passage of the Security Service Act 1989, but both parties agreed that this was of no assistance. However Mr Jaffey also referred to the IP Bill, referred to in paragraph 11(iii) above, for the purpose of showing what is now proposed, by reference to clause 83 in Part 5 of the Bill. The IP Bill provides, by clause 81, for a new warrant, to be called a "targeted equipment interference warrant", and the broad definition of the subject matter of such proposed warrant is set out in clause 83, including eight permitted such targets including, by way of example "(a) equipment belonging to, used by or in the possession of the particular person or organisation" and "(b) equipment belonging to, used by or in the possession of persons who form a group that shares a common purpose or who carry on, or maybe carrying on, a particular activity". His submission is that such defined targets are much wider than what he submits is the more limiting ambit of a s.5 warrant.
i) As to the Eighteenth Century common law cases, they are at best of marginal relevance. They plainly relate to the limitation on common law powers in relation to executive acts within the United Kingdom. S.5 is not limited to acts within the United Kingdom and in any event is a creature of statute. The legislative context and intent relate to the powers of the Secretary of State in respect of the protection of national security, and substantial limitation is imposed by the requirement of the section itself to consider whether the warrant falls within the statutory purposes of the agency applying for it (s.3(1) so far as concerns GCHQ) ("legality"), necessity and proportionality. The word "specified" is used three times in s.5(2), relating to the actions sought to be authorised and in respect of any property or "wireless telegraphy". He submits that what is required is the best description possible. Even a s.8(1) warrant under RIPA, which is expressly more limited, can have a broad ambit, as discussed in paragraph 32 above, and the inclusion of "wireless telegraphy" in the section is significant, being very broadly defined (see s.11(e) of the ISA) by reference to what was then the Wireless Telegraphy Act 1949 (now 2006), and, as Mr Jaffey accepted, could extend to an entire communications frequency or a group of communications frequencies.
ii) S.7 is a different provision. It relates to the "Authorisation of acts outside the British Islands", and is not in direct contrast with, or alternative to, s.5 (in the way for example that s.8(1) and s.8(4) fall to be contrasted in RIPA). Mr Jaffey accepts that a s.5 warrant can extend to property owned or used by a group of persons, and there may therefore be occasions in which the scope of a s.5 warrant may cover similar conduct to an operation which, if overseas, could be sanctioned under s.7, but it is nevertheless directed at specified property. Only in 2001 was s.7 amended so as to add the power for GCHQ to seek a s.7 authorisation, by the Anti-terrorism, Crime and Security Act 2001. Until then GCHQ could only rely on s.5. Thus in any event there was no such contrast between s.5 and s.7 so far as concerned GCHQ at the date of the passage of the Act.
iii) Mr Eadie does not accept any of the limiting propositions set out in paragraph 35(iii) above. He submits that the requirement is for the actions and property to be objectively ascertainable. The examples referred to above, both as to Ruritania and proscribed organisations, are in his submission entirely proper and adequate. It is not necessary to identify persons any more than is possible at the time of the issue of the warrant, and it is certainly not necessary for the individuals to be identified by name or by reference to the particular time when the warrant is issued. A warrant could cover, in the examples given, anyone who was at any time during the duration of the warrant (six months unless specifically renewed) within the defined group. What is important is that an application for a warrant contains as much information as possible to enable a Secretary of State to make a decision as to whether to issue a warrant, and, if so, as to its scope. This might involve reducing or putting a limit on the persons or category of persons covered, or defining property by reference to such a restriction. He submits that what is fundamental is the duty imposed on the Secretary of State to consider whether the warrant is within the powers of the agency applying for it (legality) and whether the issue of the warrant would satisfy the tests of necessity and proportionality. That is the discipline referred to in paragraph 88 of R (Miranda) -v- Secretary of State for The Home Department  1 WLR 3140 per Laws LJ.  Mr Jaffey points out that the requirement for proportionality was not introduced into s.5 by amendment until after the introduction of the Human Rights Act 2000, by the passage of RIPA, and that it cannot have been intended thereby to alter the scope of a lawful warrant under s.5. Mr Eadie points to the words of Lord Toulson in R (Brown) v Secretary of State for the Home Department  UKSC 8 at paragraph 24, as to the relevance of a subsequent amendment to interpretation of the statute. In any event he is content to rely if necessary on the duties of the Secretary of State as to legality and necessity already, as he puts it, "hard-wired" into s.5 prior to 2000. He submits that the words of the North Briton warrant, referred to in paragraph 35(i) above, would, subject to questions of necessity and proportionality in the particular circumstances, certainly be sufficiently specified. Another example canvassed in the course of the hearing was "all mobile phones in Birmingham". This could, submitted Mr Eadie, be sufficiently specified, but, save in an exceptional national emergency, would be unlikely to be either consistent with necessity or proportionality or with GCHQ's statutory obligations.
iv) Mr Eadie submits that (as is indeed said in its accompanying Guide) the IP Bill, albeit in respect of a differently named warrant, brings together powers already available, and the descriptions of targets in the new proposed clause 83 would, subject to the requirements of necessity and proportionality, all be consistent with the existing s.5.
(a) thinks it necessary for the action to be taken on the ground that it is likely to be of substantial value in assisting … [our underlining]
(iii) GCHQ in carrying out any function which falls within Section 3(1)(a) and
(b) is satisfied that what the action seeks to achieve cannot reasonably be achieved by other means and
(c) is satisfied that satisfactory arrangements are in force under … Section 4(2)(a)above with respect to the disclosure of information obtained … and that any information obtained under the warrant will be subject to those arrangements".
i) to identify one or more individual items of property by reference to their name, location or owner or
ii) to identify property in existence at the date on which the warrant was issued.
Warrants could therefore, for example, lawfully be issued to permit GCHQ to interfere with computers used by members, wherever located, of a group whose activities could pose a threat to UK national security, or be used to further the policies or activities of a terrorist organisation or grouping, during the life of a warrant, even though the members or individuals so described and/or of the users of the computers were not and could not be identified when the warrant was issued.
Issue 5: Scope of the Convention
Issue 6: A s.5 warrant and Articles 8/10
i) He refers to Malone v UK  7 EHRR 14 as his foundation, but in that case, as he reminded us, the ECtHR made clear that "in its present state the law in England and Wales governing interception of communications for police purposes is somewhat obscure and open to differing interpretations" long before the present suite of statutory provisions. What the Court laid down as fundamental requirements, as set out in paragraphs 67 and 68 of the Judgment, is that "there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities . . . A law which confers a discretion must indicate the scope of that discretion".
ii) He naturally referred to Weber and Saravia v Germany  46 EHRR SE5, which we addressed in detail in Liberty/Privacy (No.1), and in paragraph 33 of that judgment we set out the "Weber requirements", numbering them from 1 to 6 for convenience:
"95. In its case-law on secret measures of surveillance, the Court has developed the following minimum safeguards that should be set out in statute law in order to avoid abuses of power: (1) the nature of the offences which may give rise to an interception order; (2) a definition of the categories of people liable to have their telephones tapped; (3) a limit on the duration of telephone tapping; (4) the procedure to be followed for examining, using and storing the data obtained; (5) the precautions to be taken when communicating the data to other parties; and (6) the circumstances in which recordings may or must be erased or the tapes destroyed."
Issue 7: Bulk CNE
i) That, unlike in the case of a s.8(4) warrant under RIPA, where communications are intercepted in bulk and subsequently accessed for examination, there is no provision, in the event of this occurring pursuant to CNE, for 'filtering': i.e. as in s.16(1) and (3) of RIPA for intercept to be read, looked at or listened to only by reference to a certificate that the examination of material selected is necessary for one of the statutory purposes. S.16 is what was referred to in Liberty/Privacy (No.1) (paragraph 103) as the provision which did the 'heavy lifting'.
ii) That there is no special protection, if information is obtained in bulk through the use of CNE, for those persons known to be for the time being in the British Islands, as in s.16(2)(3) and (5) of RIPA. Such a scenario is in fact addressed in the E I Code at paragraph 7.4 (relating to a s.7 warrant) which reads:
"7.4 If a member of SIS or GCHQ wishes to interfere with equipment located overseas but the subject of the operation is known to be in the British Islands, consideration should be given as to whether a section 8(1) interception warrant or a section 16(3) certification (in relation to one or more extant section 8(4) warrants) under the 2000 Act should be obtained in advance of commencing the operation authorised under section 7. In the event that any equipment located overseas is brought to the British Islands during the currency of the section 7 authorisation, and the act is one that is capable of being authorised by a warrant under section 5, the interference is covered by a 'grace period' of 5 working days (see section 7(10) to 7(14)). This period should be used either to obtain a warrant under section 5 or to cease the interference (unless the equipment is removed from the British Islands before the end of the period)."
David Anderson in his Report refers to this paragraph of the E I Code, and comments, at paragraph 6.33:
"It does not elaborate on what factors should be taken into account in the course of that 'consideration'."
Issue 8: S.5 post-February 2015 (Weber ...4) to (6)
"It is in our judgment sufficient that:
i) Appropriate rules or arrangements exist and are publicly known and confirmed to exist, with their content sufficiently signposted, such as to give an adequate indication of it . . .
ii) They are subject to proper oversight."
The oversight relevant to this issue by the Intelligence Services Commissioner seems to us to have been admirable in its dedication to raising any questions of concern.
i) He was critical of the apparent lack of provision for record keeping in relation to intrusions pursuant to s.7, but, quite apart from the fact that this related to s.7 and not to s.5, in fact it is clear that, as indeed he accepted, a combination of paragraphs 5.1 and 7.2 of the E I Code does require the keeping of records in relation to "the details of what equipment interference has occurred".
ii) He described as "Delphic" a reference in Mr Martin's witness statement to the nature of a recommendation by the Intelligence Services Commissioner with regard to a s.5 record, but accepted the explanation provided by Mr Eadie during the course of his submissions: Day 3/74.
Issue 9: S.5 prior to February 2015
i) It was not, at any rate with any great force, sought to be argued by Mr Jaffey that the position was any different in relation to Weber (1) to (3) prior to and subsequent to February 2015, and we are satisfied that our conclusions in Issue 6 above apply prior to February 2015, and we shall address for the purposes of this Issue only Weber (4) to (6).
ii) It was common ground before us that Weber (1) to (6) constitute a minimum to be complied with, but that there are other factors to consider such as:
a) The existence and standard of oversight. It is entirely clear to us that both sides have relied upon his Reports, and that the oversight by the Intelligence Services Commissioner has been of great value.
b) The existence of sufficiently signposted underlying arrangements, which are adequate to control arbitrary action by the Respondents. It is important to bear in mind, for example, that the Tribunal concluded in Liberty/Privacy No.1 that the s.8(4) regime complied with the Convention, after taking into account the arrangements, which we concluded had been adequately signposted prior to any further disclosures by the Respondent (e.g. paragraph 140). This did not involve or require disclosure of the detail of those arrangements.
iii) R.E. v UK requires to be addressed specifically, as the only relevant ECtHR decision since Liberty/Privacy. The Court was addressing the Property Code (there called the "Revised Code"), and contrasting it with the Interception of Communications Code of Practice ("the Interception Code"), which the ECtHR had approved in Kennedy v UK  52 EHRR 4. The case before it concerned the issue of the safeguarding of legally and professionally privileged ("LPP") communications in relation to covert surveillance. The Court concluded that Weber (1) to (3) were satisfied, but that Weber (4) to (6) were not. We shall need to address that conclusion, unfavourable to the Respondents, by the Court.
i) The statutory provision in relation to GCHQ, which is obviously fundamental. This appears in s.4 of ISA.
"4 The Director of GCHQ.
(1) The operations of GCHQ shall continue to be under the control of a Director appointed by the Secretary of State.
(2) The Director shall be responsible for the efficiency of GCHQ and it shall be his duty to ensure—
(a) that there are arrangements for securing that no information is obtained by GCHQ except so far as necessary for the proper discharge of its functions and that no information is disclosed by it except so far as necessary for that purpose or for the purpose of any criminal proceedings; and
(b) that GCHQ does not take any action to further the interests of any United Kingdom political party.
. . .
(4) The Director shall make an annual report on the work of GCHQ to the Prime Minister and the Secretary of State and may at any time report to either of them on any matter relating to its work."
There is a cross reference to s.4 in s.5(2)(c) of ISA, set out in paragraph 4 above together with s.6, which is also relevant.
ii) The other related statutory provisions set out in paragraph 6(ii), (iii) and (iv) above: disclosure or use by an employee of GCHQ of information in breach of a relevant arrangement within s.4(2)(a) of the ISA above set out would constitute a criminal offence pursuant to the OSA.
iii) The Property Code, being the published arrangements. Relevant to Weber (4) to (6) are:
"8.3 The following information relating to all authorisations for property interference should be centrally retrievable for at least three years:
• the time and date when an authorisation is given;
• whether an authorisation is in written or oral form;
• the time and date when it was notified to a Surveillance Commissioner, if applicable;
• the time and date when the Surveillance Commissioner notified his approval (where appropriate);
• every occasion when entry on or interference with property or with wireless telegraphy has occurred;
• the result of periodic reviews of the authorisation;
• the date of every renewal; and
• the time and date when any instruction was given by the authorising officer to cease the interference with property or with wireless telegraphy.
. . .
9.3 Each public authority must ensure that arrangements are in place for the secure handling, storage and destruction of material obtained through the use of directed or intrusive surveillance or property interference. Authorising officers, through their relevant Data Controller, must ensure compliance with the appropriate data protection requirements under the Data Protection Act 1998 and any relevant codes of practice produced by individual authorities relating to the handling and storage of material.
. . .
9.7 The heads of these agencies are responsible for ensuring that arrangements exist for securing that no information is stored by the authorities, except as necessary for the proper discharge of their functions. They are also responsible for arrangements to control onward disclosure. For the intelligence services, this is a statutory duty under the 1989 Act and the 1994 Act."
"Storage of and access to data
99ZK. GCHQ also has policies for storage of and access to data obtained by CNE.
99ZL. The section of the Compliance Guide concerning "Review and Retention" states that GCHQ treats "all operational data" (i.e. including that obtained by CNE) as if it were obtained under RIPA. It sets out GCHQ's arrangements for minimising retention of data in accordance with RIPA safeguards. This is achieved by setting default maximum limits for storage of operational data.
99ZM. In addition GCHQ has a separate policy specifically concerning data storage and access. It defines different categories of data, and importantly ascribes specific periods for which different categories of data may he kept, as well as explaining how different categories of CNE data relate to the categories of operational data set out in the Compliance Guide.
99ZN. Where CNE analysts identify material as being of use for longer periods than the stipulated limits, it can be retained for longer, subject to justification according to specific criteria.
99Z0. Access to data is also subject to strict safeguards, which are set out in the Compliance Guide. CNE content may be accessed by intelligence analysts, but they must first demonstrate that such access is necessary and proportionate by completing a Human Rights Act ("HRA") justification. HRA justifications are recorded and made available for audit. CNE technical data relating to the conduct of CNE operations may only be accessed by a team of trained operators responsible for planning and running such operations.
99ZP. GCHQ's policy on storage of and access to data also requires GCHQ analysts who are not in the CNE operational unit to justify access to CNE data on ECHR grounds (particularly necessity and proportionality). The justification must be recorded and available for audit.
Handling/disclosure/sharing of data obtained by CNE operations
99ZQ. Pursuant to GCHQ's Compliance Guide, the position is that all operational material is handled, disclosed and shared as though it had been intercepted under a RIPA warrant. The term "operational material" extends to all information obtained via CNE, as well as material obtained as a result of interception under RIPA.
99ZR. The general rules, as set out in the Compliance Guide and the intelligence Sharing and Release Policy which apply to the handling of operational material include, inter alia, a requirement for mandatory training on operational legalities and detailed rules on the disclosure of such material outside GCHQ and the need to ensure that all reports are disseminated only to those who need to see them.
a) Operational data cannot be disclosed outside of GCHQ other than in the form of an intelligence report.
b) Insofar as operational data comprises or contains confidential information (e.g. journalistic material) then any analysis or reporting of such data must comply with the "Communications Containing Confidential Information" section of the Compliance Guide. This requires GCHQ to have greater regard to privacy issues where the subject of the interception might reasonably assume a high degree of privacy or where confidential information is involved (e.g. legally privileged material, confidential personal information, confidential journalistic information, communications with UK legislators) GCHQ must accordingly demonstrate to a higher level than normal that retention and dissemination of such information is necessary and proportionate."
i) The impact of the fact that until February 2015, i.e. throughout the period we are addressing, it was not admitted by the Respondent that GCHQ carried out CNE;
ii) The impact of the decision of R.E. v UK, in relation to the consideration by the ECtHR.
We will deal with the second submission first.
"138. In contrast, fewer details concerning the procedures to be followed for examining, using and storing the data obtained, the precautions to be taken when communicating the data to other parties, and the circumstances in which recordings may or must be erased or the tapes destroyed are provided in Part II of RIPA and/or the Revised Code. Although material obtained by directed or intrusive surveillance can normally be used in criminal proceedings and law enforcement investigations, paragraph 4.23 of the Revised Code makes it clear that material subject to legal privilege which has been deliberately acquired cannot be so used (see paragraph 75 above). Certain other safeguards are included in Chapter 4 of the Revised Code with regard to the retention and dissemination of material subject to legal privilege (see paragraph 75 above). Paragraph 4.25 of the Revised Code provides that where legally privileged material has been acquired and retained, the matter should be reported to the authorising officer by means of a review and to the relevant Commissioner or Inspector during his next inspection. The material should be made available during the inspection if requested. Furthermore, where there is any doubt as to the handling and dissemination of knowledge of matters which may be subject to legal privilege, Paragraph 4.26 of the Revised Code states that advice should be sought from a legal advisor before any further dissemination takes place; the retention or dissemination of legally privileged material should be accompanied by a clear warning that it is subject to legal privilege; it should be safeguarded by taking "reasonable steps" to ensure there is no possibility of it becoming available, or it contents becoming known, to any person whose possession of it might prejudice any criminal or civil proceedings; and finally, any dissemination to an outside body should be notified to the relevant Commissioner or Inspector during his next inspection.
139. These provisions, although containing some significant safeguards to protect the interests of persons affected by the surveillance of legal consultations, are to be contrasted with the more detailed provisions in Part I of RIPA and the Interception of Communications Code of Practice, which the Court approved in Kennedy (cited above, §§ 42 – 49). In particular, in relation to intercepted material there are provisions in Part I and the Code of Practice limiting the number of persons to whom the material is made available and restricting the extent to which it is disclosed and copied; imposing a broad duty on those involved in interception to keep everything in the intercepted material secret; prohibiting disclosure to persons who do not hold the necessary security clearance and to persons who do not "need to know" about the material; criminalising the disclosure of intercept material with an offence punishable by up to five years' imprisonment; requiring intercepted material to be stored securely; and requiring that intercepted material be securely destroyed as soon as it is no longer required for any of the authorised purposes.
140. Paragraph 9.3 of the Revised Code does provide that each public authority must ensure that arrangements are in place for the secure handling, storage and destruction of material obtained through directed or intrusive surveillance. In the present case the relevant arrangements are contained in the PSNI Service Procedure on Covert Surveillance of Legal Consultations and the Handling of Legally Privileged Material. The Administrative Court accepted that taking together the 2010 Order, the Revised Code and the PSNI Service Procedure Implementing Code, the arrangements in place for the use, retention and destruction of retained material in the context of legal consultations was compliant with the Article 8 rights of persons in custody. However, the Service Procedure was only implemented on 22 June 2010. It was therefore not in force during the applicant's detention in May 2010.
141. The Court has noted the statement of the Government in their observations that only one intrusive surveillance order had been granted up till then in the three years since the 2010 Order (introducing the Revised Code) had come into force in April 2010 (see paragraphs 11 and 12 above). Nevertheless, in the absence of the "arrangements" anticipated by the covert surveillance regime, the Court, sharing the concerns of Lord Phillips and Lord Neuberger in the House of Lords in this regard (see paragraphs 36 – 37 above) is not satisfied that the provisions in Part II of RIPA and the Revised Code concerning the examination, use and storage of the material obtained, the precautions to be taken when communicating the material to other parties, and the circumstances in which recordings may or must be erased or the material destroyed provide sufficient safeguards for the protection of the material obtained by covert surveillance.
142. Consequently, the Court considers that, to this extent, during the relevant period of the applicant's detention (4 – 6 May 2010 – see paragraphs 18 – 20 above), the impugned surveillance measures, insofar as they may have been applied to him, did not meet the requirements of Article 8 § 2 of the Convention as elucidated in the Court's case-law."
(i) the statutory obligations of and upon GCHQ referred to in paragraph 75 (i) and (ii) above (very much more significant than those imposed upon the Police):
(ii) the provisions of paragraph 9.3 and 9.7 of the Code:
(iii) the under the waterline arrangements set out in paragraph 76 above, which we are satisfied were adequately signposted:
(iv) the oversight by the Intelligence Services Commissioner of GCHQ's compliance with their obligations.
Taken together, these are safeguards designed to prevent any arbitrary exercise of the powers to conduct CNE. But none of the safeguards would have been an answer to a system concluded (and now conceded) to have been inadequate in respect of its protection of LPP communications.
Issue 10 Legal and Professional Privilege
(i) Issue 1: An act (CNE) which would be an offence under s.3 of the CMA is made lawful by a s.5 warrant or s.7 authorisation, and the amendment of s.10 CMA was simply confirmatory of that fact.
(ii) Issue 2: An act abroad pursuant to ss.5 or 7 of the ISA which would otherwise be an offence under ss.1 and/or 3 of the CMA would not be unlawful.
(iii) Issue 3: The power under s.5 of ISA to authorise interference with property encompasses intangible property.
(iv) Issue 4: A s.5 warrant is lawful if it is as specific as possible in relation to the property to be covered by the warrant, both to enable the Secretary of State to be satisfied as to legality, necessity and proportionality and to assist those executing the warrant, so that the property to be covered is objectively ascertainable, and it need not be defined by reference to named or identified individuals.
(v) Issue 5: There might be circumstances in which an individual claimant might be able to claim a breach of Article 8/10 rights as a result of a s.7 authorisation, but that does not lead to a conclusion that the s.7 regime is non-compliant with Articles 8 or 10.
(vi) Issue 6: A s.5 warrant which accords with the criteria of specification referred to in Issue 4 complies with the safeguards referred to in Weber (1) to (3), and consequently with Articles 8 and 10 in that regard.
(vii) Issue 7: If information were obtained in bulk through the use of CNE, there might be circumstances in which an individual complainant might be able to mount a claim, but in principle CNE is lawful.
(viii) Issue 8: The s.5 regime since February 2015 is compliant with Articles 8/10.
(ix) Issue 9: The s.5 regime prior to February 2015 was compliant with Articles 8/10.
(x) Issue 10: So far as concerns the adequacy of dealing with LPP, the CNE regime has been compliant with the Convention since February 2015.
1. Prior to the amendments to the Computer Misuse Act 1990 ("CMA 1990") with effect from 3 May 2015, and after those amendments:
a. was an act constituting an offence under s.3 CMA 1990 capable of being rendered lawful by a warrant issued under the Regulation of Investigatory Powers Act 2000 ("RIPA 2000") or a warrant or authorisation under the Intelligence Services Act 1994 ("ISA 1994")?
b. would the CNE activities of a Crown servant in the course of his employment, if committed in a foreign country or against assets or individuals located in a foreign country, have amounted to an offence under s.3 CMA 1990 as though the activities had been committed in England and against assets or individuals located in England?
2. Does s.5 ISA 1994 permit the issue of a 'class' or 'thematic' warrant, i.e. a warrant authorising certain acts or types of acts in general rather than by reference to specified property or wireless telegraphy?
3. Does the power under s.5 ISA 1994 to authorise interference with "property" encompass physical property only, or does it also extend to intangible legal rights, such as copyright?
4. Is the regime which governs Computer Network Exploitation ("the regime") "in accordance with the law" under Article 8(2) ECHR / "prescribed by law" under Article 10(2) ECHR? In particular:
a. Is the regime sufficiently foreseeable?
b. Are there sufficient safeguards to protect against arbitrary conduct?
c. Is the regime proportionate?
d. Was this the case throughout the period commencing 1 August 2009?
a. Should CNE activities be authorised by specific and individual warrants, or is it sufficient that they be authorised by 'class' or 'thematic' warrants or authorisations without reference to a specific individual target?
b. What records ought to be kept of CNE activity? Is it necessary that records of CNE activity are kept that record the extent of the specific activity and the specific justification for that activity on grounds of necessity and proportionality, identifying and justifying the intrusive conduct taking place?
c. Have adequate safeguards been in place at all times to prevent the obtaining, storing, analysis or use of legally privileged material and other sensitive confidential documents?
d. What, if any, is the relevance of the fact that, until February 2015, it was neither confirmed nor denied that the Respondents carried out CNE activities at all?
e. What, if any, is the relevance of the Covert Surveillance and Property Interference Code, issued in 2002 and updated in 2010 and 2014?
f. What, if any, is the effect of the publication of a Draft Equipment Interference Code of Practice in February 2015?
g. What, if any, is the relevance of the Intelligence Services Commissioner's oversight of the use of the powers contained within ISA 1994?
h. What, if any, is the relevance of the oversight by the Tribunal and the Intelligence and Security Committee of Parliament?
5. Keeping of records
Centrally retrievable records of warrants
- All applications made for warrants and for renewals of warrants:
- the date when a warrant is given;
- whether a warrant is approved under urgency procedures;
• where any application is refused, the grounds for refusal as given by
the Secretary of State;
- the details of what equipment interference has occurred;
- the result of periodic reviews of the warrants;
- the date of every renewal; and
• the date when any instruction was given by the Secretary of State to cease the equipment interference.
6. Handling of information and safeguards
Use of information as evidence
Handling information obtained by equipment interference
Dissemination of information
The GCHQ Compliance Guide explains that the RIPA Interception of Communications Code of Practice stipulates that greater regard should be had for privacy issues where the subject of the interception might reasonably assume a high degree of privacy or where confidential information is involved. This means that there are certain categories of communication where a particular high threshold of proportionality must be applied to the release of the content, because the content of the communication would ordinarily be considered confidential (in the common sense of the word) or otherwise privileged. These categories are:
-Legally privileged communications;
-Personal information held in confidence relating to physical or mental health;
-Personal information held in confidence relating to spiritual counselling:
-Confidential journalistic material;
-Confidential constituent information
Legal Professional Privilege (LPP) broadly falls into two categories.
-legal advice privilege which attaches to communications between a professional legal adviser, acting as such, and their client where the communications are made confidentially for the purpose of seeking or providing legal advice.
-litigation privilege which attaches to communications between the client and his legal adviser or agent, or between one of them and a third party, if such communications come into existence for the sole or dominant purpose of either seeking or providing legal advice with regard to litigation or collecting evidence in respect of litigation. This second category is wider than the first since it is possible for
litigation privilege to attach to communications other than those directly between a lawyer and their client, i.e. privilege can attach to communications between a lawyer and a third party where such communications are in connection with legal proceedings.
The concept of LPP applies to:
- The content of communications that fall into one of the categories above, and
- Exceptionally, some communications data (i.e. 'events' or the fact of a communication),
The purpose of LPP is to ensure that individuals are able to consult a lawyer in confidence without fear that what passes between them will later be used against
them in court and it is therefore fundamental to the right to a fair trial and the rule of law. Intelligence material subject to LPP cannot be released to a customer who may
be a party to any legal case to which the material relates, because this would give
that customer an unfair litigation advantage (it being a basic principle that litigants cannot be required to reveal privileged material to either their opponents or the
court in a given piece of litigation). However, communications made with the intention of furthering a criminal purpose (whether the lawyer is acting unwittingly or culpably)
are unlikely to be protected by LPP. For more details contact the Disclosure Policy team.
The judgment as to whether it is necessary and proportionate to include information subject to LPP in the release of intelligence material by GCHQ must take account of the particular sensitivity of such information and any associated risks. It is likely that any release of material protected by LPP that is deemed both necessary [and] proportionate will be to a more limited readership limited and possibly more highly classified than would otherwise be the case. The judgment of necessity and proportionality in these cases is reserved to Mission Policy, and all reporting containing anything that you believe may be covered by LPP must be submitted for checking. For the sake of simplicity, in order to ensure that all intelligence material containing potentially LPP information is submitted and assessed, reports featuring the following types of intelligence must be submitted for checking before issue:
The sensitivity of reporting LPP information is not mitigated by disguising or removing the identity or occupation of the communicant. But neither is there a 'ban' on identifying or reporting such material – it may well be necessary and proportionate to report such information to certain circumstances. The checking process is designed to determine this. If Mission Policy considers it proportionate in a particular case to release intelligence based on communications that attract legal privilege, the reporter will be instructed to apply the following rubric to the report:
This report contains material that may be subject to legal professional privilege, and onward dissemination/Action On is not to be taken without reverting to GCHQ.
Note 1 The decision in the Court of Appeal ( EWCA Civ.6), subsequent to the hearing before us, does not question the importance of this discipline, but considers the overlay of Article 10 in relation to press freedom (per Lord Dyson MR at paras 98-117). [Back] Note 2 All information obtained by equipment interference must be handled in accordance with arrangements made under section 2(2)(a) of the 1989 Act and sections 2(2)(a) and 4(2)(a) of the 1994 Act (and pursuant to sections 5(2)(c) and 7(3)(c) of the 1994 Act).
Note 1 The decision in the Court of Appeal ( EWCA Civ.6), subsequent to the hearing before us, does not question the importance of this discipline, but considers the overlay of Article 10 in relation to press freedom (per Lord Dyson MR at paras 98-117). [Back]
Note 2 All information obtained by equipment interference must be handled in accordance with arrangements made under section 2(2)(a) of the 1989 Act and sections 2(2)(a) and 4(2)(a) of the 1994 Act (and pursuant to sections 5(2)(c) and 7(3)(c) of the 1994 Act). [Back]