In Privacy International v Investigatory Powers Tribunal, the Divisional Court held that s.5 Intelligence Services Act 1994 does not permit the government to issue general warrants to engage in computer network exploitation (“CNE”) – more commonly known as computer hacking. The court also offered valuable guidance on warrants and what is required to make them lawful.
There were three issues:
1. Does s.5 Intelligence Services Act 1994 (“the 1994 Act”) permit the Secretary of State to issue ‘thematic’ or ‘general’ warrants to hack computers? General warrants are those which purportedly authorise acts in respect of an entire class of people or an entire class of acts (e.g. ‘all mobile phones in London’).
2. Should the court allow the claim to be amended to include a complaint that, prior to February 2015, the s.5 regime did not comply with Articles 8 and 10 of the European Convention on Human Rights?
3. If permission is given to amend the claim, should the new ground succeed?
Conor Monighan brings us the latest updates in human rights law
In the News:
A landmark piece of legislation was passed this week, with significant consequences for civil liberties. The Coronavirus Act 2020, which was passed in only 4 days, is designed to mitigate the impact of Covid-19.
It gives the police a number of powers, including:
A power to restrict events and shut down premises such as non-essential shops (Schedule 22).
The ability to forcibly isolate or detain individuals who are thought to be at risk of spreading Covid-19.
A reduction in the care duties imposed on Local Authorities.
The Act also produces a number of changes designed to help workers:
Employers can reclaim the cost of paying statutory sick pay from HMRC.
Employees can claim sick pay from the day they stop working, rather than there being a delay of three days before payments are made.
The Act has attracted criticism for the range of powers it grants to the executive, and the speed with which it was passed. To help address these concerns, the Act will automatically expire after two years. Matt Hancock MP, the Health Secretary, also said that the Act will be debated and voted on every six months. This commitment is reflected in s.98. A statement of compatibility with the ECHR has been made. Continue reading →
A study raising concerns about journalists’ ability to protect sources and whistleblowers was launched in the House of Lords last Wednesday.
The Institute of Advanced Legal Studies (IALS), in collaboration with the Guardian, has published the results of a research initiative into protecting journalists’ sources and whistleblowers in the current technological and legal environment. Investigative journalists, media lawyers, NGO representatives and researchers were invited to discuss issues faced in safeguarding anonymous sources. The report: ‘Protecting Sources and Whistleblowers in a Digital Age’ is available online here.
The participants discussed technological advances which facilitate the interception and monitoring of communications, along with legislative and policy changes which, IALS believes, have substantially weakened protections for sources. Continue reading →
Despite repeat flurries of excitement as a coalition of Peers suggest time and again that most of the controversial Communications Data Bill – popularly known as the Snoopers’ Charter – might be a late-stage drop in; the press has, perhaps regrettably, shown little interest in the Bill.
As the world’s press and public stand vigil in support of Charlie Hebdo and the families of the victims of Wednesday’s attack, we wake this morning to reports that our security services are under pressure and seeking new powers. The spectre of the Communications Data Bill is again evoked. These reports mirror renewed commitments yesterday to new counter-terrorism measures for the EU and in France.
This blog has already covered the reaction to the shootings in Paris in some detail. The spectrum of reaction has been about both defiance and fear. The need for effective counter-terrorism measures to protect us all, yet which recognise and preserve our commitment to the protection of fundamental rights is given a human face as people take to the streets to affirm a commitment to protect the right of us all to speak our mind, to ridicule and to lampoon, to offend and to criticise, without fear of oppression or violence. It is against this backdrop that we might remember that UK Ministers are already in the process of asking Westminster to expand our already broad framework of counter-terrorism legislation.
The Court of Appeal has published its decision in Guardian News Media v AB and CD. It is not a judgment, the Court says. Judgments – plural – will be given “in due course.” Still, the 24 paragraph decision contains the order and explanation of the order, and gives an indication of some of the reasons that will follow.
Is this a good decision? It is better than it might have been, but there are still deeply worrying problems.
Two barristers have advised a Parliamentary committee that some mass surveillance allegedly undertaken by the UK’s security services is probably illegal. Jemima Stratford QC and Tim Johnston’s advice (PDF) was commissioned by the chair of the All Party Parliamentary Group on Drones.
You may ask why an Parliamentary group on drones is getting involved in the GCHQ surveillance debate, itself kickstarted by the revelations by Edward Snowden (pictured). The slightly tangential answer is that the committee is concerned about the legality of data being passed to the United States for use in drone strikes.
The Foreign Secretary in February 2013 issued a certificate of Public Interest Immunity (PII), on the grounds of national security and/or international relations, to prevent the disclosure of a representative sample of Government documents relating to the 2006 poisoning. In May 2013 the Coroner for the Litvinenko Inquest (Sir Robert Owen) partially rejected that certificate and ordered the disclosure of gists of material relating to some of the key issues surrounding the death(read ruling). In this judgement, a panel of three judges of the High Court unanimously quashed that ruling.
Elosta v Commissioner of Police for the Metropolis  EWHC 3397 – Read Judgment
The High Court has held that a person detained for questioning under the Terrorism Act 2000 is entitled to consult with a solicitor in person prior to answering questions.
The right to consult with a lawyer before one is interviewed by law enforcement officers might be fairly characterised as a “pop culture” right. Reality television shows, crime dramas, even block buster films (I’m thinking Neo in the first Matrix film – pictured) have all played a part in ensuring that the right to legal advice in that context is ingrained in the consciousness of the masses.
This case dealt with a specific and rather technical variation on that theme.
The piece is about the case of Sabure Malik, a British investment banker who was stopped by police in 2010 at Heathrow on his way back from an organised package tour to undertake the Hajj. Full details of his case, which is supported by Liberty, are in the Euoprean Court of Human Rights’ admissibility decision here. It was granted permission to proceed in May 2013, well before the David Miranda controversy which took place in August.
In late 2007, the Secretary of State for the Home Department made an order depriving Mr Al Jedda, who had been granted British citizenship in 2000, of his citizenship, under the British Nationality Act 1981. Section 40(4) of the Act prohibits the deprivation of nationality where the effect would be to render the person stateless.
Not being a citizen of any state can have profound effects on a person’s ability to live a normal life, including being unable to obtain travel documents and facing difficulty settling and obtaining work, education and healthcare. However, the Secretary of State considered that taking away Mr Al Jedda’s nationality was conducive to the public good.
Sylvie Beghal v Director of Public Prosecutions,  EWHC 2573 (Admin) – read judgment
In a judgment with implications for the detention of David Miranda, the High Court has today dismissed an appeal against a conviction for wilfully failing to comply with a duty imposed by virtue of Schedule 7 to the Terrorism Act 2000.
The Court rejected the submission that the Schedule 7 powers in question violated the Appellant’s right under Articles 5, 6 and 8 of the ECHR. However, the Court urged consideration of a legislative amendment introducing a statutory bar to the introduction of Schedule 7 admissions in subsequent criminal trials.
Part of the following report is taken from the Court’s press summary, part is based on the judgment itself.
As the August news lull continues, the David Miranda controversy is still troubling commentators – see Daniel Isenberg’s superb roundup. In the past week or so, an interesting symmetry has arisen between those defending and criticising the Police’s actions.
The Police’s critics say the detention was probably unlawful, but even if it was lawful it shouldn’t have been as, if this non-terrorism case can fit within existing anti-terror law, then terrorism powers are too wide. This more or less fits with my view, although I am not sure yet about the lawfulness of the detention. A reverse argument is made by the Police’s defenders: the detention was probably lawful, but if if it wasn’t then it should have been, as we need to be able to prevent these kind of dangerous intelligence leaks from occurring. See e.g. Matthew Parris and to an extent Louise Mensch.
Into the second category steps Lord Ian Blair, former Metropolitan Police Commissioner. He has told the BBC that the threat from international terrorism was “constantly changing” and there was a need to “review the law”:
Our attitude to anti-terror policing is very strange indeed. In many ways, it is like a magician’s trick. We (the public) turn up at the show with the full intention of suspending our disbelief so as to be entertained and entranced. The magician pulls the rabbit out of the hat, or makes the Statue of Liberty disappear. We applaud, we are entranced.
But we know , somewhere in the back of our minds, that we are being fooled.
As with our safety from terror. We are happy because major terrorist attacks in the UK or US are thankfully rare. We are told about countless attacks which have been thwarted. We applaud, we are entranced. But we know, somewhere, that there must be a price.
That price is our civil liberties. More accurately, that price is the civil liberties of others, who we don’t know but whose faces occasionally drift through the public conscience. Binyam Mohamad, who was tortured by the CIA, apparently with collusion by our own Security Services. Shaker Aamer, who has been detained in Guantanamo Bay without charge for almost 12 years. And it is no secret that many anti-terrorism laws are draconian and involve a huge potential for abuse.
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.