Security Services Cases Flashcards
Malone v UK (1984)
ECHR Art 8
• Crim. case
• The applicant believed that both his correspondence and his telephone calls had been intercepted for a number of years
• Based his belief on delay to and signs of interference with his correspondence
o In particular, he produced bundles of envelopes which had been delivered to him either sealed with an adhesive tape of an identical kind or in an unsealed state
o As to his telephone communications, he stated that he had heard unusual noises on his telephone and alleged that the police had at times been in possession of information which they could only have obtained by telephone tapping
• The Government consistently declined to disclose to what extent, if at all, the applicant’s telephone calls and mail had been intercepted
• Court’s assessment:
• Where a power of the executive is exercised in secret, the risks of arbitrariness are evident
o Not clear what they’re doing, also not clear to citizen what they shouldn’t be doing (i.e. what actions they might be undertaking that would attract the attention of the security services)
• The law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence
• In view of the attendant obscurity and uncertainty as to the state of the law in this essential respect, the Court cannot but reach the conclusion that of the law of England and Wales does not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities
R (Mohamed) v Secretary of State of Foreign and Commonwealth Affairs (No 1) (2008)
ECHR Art 8
• Young man of Ethiopian origin was held by the US services in various locations across the world for over two years, ultimately confessing to terrorist offences.
• He argued that his confession was extracted through torture
o Alleged that members of the UK intelligence services had facilitated his questioning
o Claimed that the UK had evidence which would prove his confession was the result of torture
• Foreign secretary admitted that “he had evidence which could be considered exculpatory or might otherwise be relevant in the context of proceedings”
• FS argued that he was under no duty to disclose the documents or the information contained in them and to do so would “in any event cause significant damage to national security of the United Kingdom”
• Eventually, the US provided the documents at issue to BM’s lawyers
• Case then turned on whether the summary of the papers redacted in the judgment should be restored in the interests of open justice and of equality of the parties in litigation
• The paragraphs were eventually reinstated
Kennedy v UK
ECHR Art 6
• Art 6 ECHR is not an absolute right
o Art 6 para 1: national security may justify the exclusion of the public from the proceedings
• Clarified and upheld principles under which IPC operates
• If you have determination made in your favour, you can find out what the security agencies are doing to you
o If you have a no determination, you will never find out
Liberty and Others v The Security Service, SIS, GCHQ (2015)
SECURITY SERVICES
• Privacy advocates challenged bulk interception of communication suggesting it violated Articles 8 and 10 ECHR. They relied on the fact that these powers were not prescribed by law.
• IPT found that an adequate indication of the arrangements had been provided by virtue of information released following the commencement of legal action.
• The inference of this finding is that the “prescribed by law” deficiencies of the surveillance arrangement were remedied by the transparency effectively imposed on the agencies through the pursuit of legal redress
Caroline Lucas MP, Baronness Jones of Mouslecomb Am, George Galloway v The Security Service, SIS, GCHQ (2015)
SECURITY SERVICES
• “Wilson Doctrine: introduced in the 60s, security services didn’t tap phones or intercept mail of MPs (incl. MSPs)
• Important for political freedom, also their communications are privileged
• Case found that existence of Wilson Doctrine had no legal effect
• Interception of MP communications complies with convention
News Group Newspapers Ltd and Others v Commissioner of Police for the Metropolis (2015)
SECURITY SERVICES
• IPT examined the authorisations made under RIPA s22 for the interception of communications of journalists reporting on the ‘Plebgate’ scandal
• The purpose of the authorisations was to enable the police to obtain communications data which might reveal the sources of information obtained by the journalists
• The tribunal found that the legal regime in place at the relevant time did not adequately safeguard the important public interest in the right of a journalist to protect the identity of his source under Article 10 ECHR
R (Davis and Wilson) v Secretary of State for Home Department (2015)
DATA RETENTION INVESTIGATORY POWERS ACT 2014
• DRIPA = inconsistent with EU law
• Lacked clear and precise rules governing access to and use of communications data
