The IPT’s determination about the individual Liberty claimants’ rights

In its Judgment of April 29, 2015 in Belhadj & Ors. [2015] UKIPTrib13_132-H, the IPT ruled that individual claimants are entitled to learn that their rights were violated. In accord with this, on June 22, 2015, the IPT issued a Determination addressing whether before November 18, 2014, the UK authorities had violated the rights under Articles 8 and 10 of the ECHR of Liberty and the other NGO’s that filed complaints. The Determination considered whether there had been violations through the “soliciting, receiving, storing and transmitting … private communications … obtained by the US authorities pursuant to Prism and/or Upstream.” Open Determination, para. 2(i). The IPT also addressed whether the individual NGO’s “communications have been intercepted pursuant to s. 8(1) or 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, Article 8 and/or 10 ECHR.” Id., para. 2(ii). In addition to publishing an Open Determination, the IPT intended to issue a closed report on the issues to the Prime Minister. Id. at 18.

Although the Determination of June 22 concluded that The Egyptian Initiative for Personal Rights and The Legal Resources Centre, South Africa were the only complainants whose rights were violated, on July 1, 2015, the IPT notified the parties by email that the breach that the June 22 Determination claimed the GCHQ committed against The Egyptian Initiative for Personal Rights was in fact committed against Amnesty International Ltd. The email stated that the intelligence agencies had brought the mistake to the IPT’s attention, and that the mistake “did not result from any failure by them to make disclosure.”

The findings made with regard to The Egyptian Initiative for Personal Rights on June 22 and subsequently determined to apply to Amnesty International Ltd. were that while its email communications “were lawfully and proportionately intercepted and accessed, pursuant to s. 8(4) of RIPA,” the communications were retained “for materially longer” than the retention period allowed by the GCHQ’s internal policies. The IPT found, however, that “the product was not accessed after the expiry of the relevant time limit,”and therefore characterized the breach as “technical.” Nonetheless, the IPT held that “the retention of intercept in and of itself constitutes an interference” with Article 8 rights and that retention for longer than the GCHQ’s internal policies allowed violated Article 8’s requirement that any interference be “in accordance with law.” Finding, however, that The Initiative had “not suffered any material detriment, damage or prejudice as a result of the breach,” the IPT ordered the GCHQ to destroy any of the Initiative’s communications that had been retained for longer than the authorized retention period, but did not award the Initiative any damages. Id., para. 14.

Using similar reasoning, the IPT found that the GCHQ had violated the rights of The Legal Resources Centre, South Africa under Article 8 of the ECHR. According to the Tribunal, the GCHQ had lawfully and proportionately intercepted communications from an email address associated with the Centre under s.8(4) of RIPA, and had proportionately selected the communications for examination. Nonetheless, the “in accordance with the law” requirement of Article 8 was violated because the GCHQ had failed to follow its internal policies when it selected the Centre’s communications for examination. The IPT found, however, that since the GCHQ had made “no use whatever … of any intercepted material” or retained any record thereof, the Centre had “not suffered any material detriment, damage or prejudice as a result of the breach.” Accordingly, the Centre was not awarded any compensation. Id.. para. 15.

By contrast, the IPT made “no determination” in favor of claimants Liberty, Privacy International, the American Civil Liberties Union, Canadian Civil Liberties Union, Hungarian Civil Liberties Union, Irish Council for Civil Liberties, Amnesty International Ltd (as a result of the July 1 correction, the “no determination” did not apply to Amnesty, but to The Egyptian Initiative for Human Rights) , or Bytes for All. In accord with the IPT’s limited recognition of a duty to disclose, the “no determinations” could mean that the IPT found that the NGO’s were not subject to surveillance or found that they were subject to surveillance, but the surveillance was lawful.

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