Preliminary objection joined to merits and dismissed (victim);No violation of Art. 8;No violation of Art. 6-1;No violation of Art. 13

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

On DATE , the applicant was arrested for drunkenness and taken to FAC . He was held overnight in a cell shared by another detainee , PERSON . DATE , PERSON was found dead with severe injuries . The applicant was charged with his murder . The applicant alleged that the police had framed him for the murder in order to cover up their own wrongdoing . In DATE , the applicant was found guilty of the murder of PERSON and was sentenced to life imprisonment . In DATE , his conviction was overturned on appeal . At a first retrial , CARDINAL of the police officers , a key prosecution witness , failed to appear . He was subsequently declared mentally unstable and was withdrawn from the proceedings . Following a second retrial , the applicant was convicted in DATE of manslaughter and sentenced to DATE imprisonment . The case was controversial in GPE on account of missing and conflicting police evidence which led DATE including a number of Members of ORG – to question the safety of the applicant 's conviction .

In DATE , the applicant was released from prison . Following his release , he became active in campaigning against miscarriages of justice generally . He subsequently started a removal business called ORG , undertaking small moves and van hire in GPE . Although his business did well at the beginning , he subsequently began to experience interference with his business telephone calls . He alleged that local calls to his telephone were not being put through to him and that he was receiving a number of time - wasting hoax calls . The applicant suspected that this was because his mail , telephone and email communications were being intercepted . As a result of the interference , the applicant 's business began to suffer .

The applicant believed that the interception of his communications was directly linked to his high profile case and his subsequent involvement in campaigning against miscarriages of justice . He alleged that the police and security services were continually and unlawfully renewing an interception warrant DATE originally authorised for the criminal proceedings against him – in order to intimidate him and undermine his business activities .

On DATE the applicant made subject access requests to MICARDINAL and ORG ( GPE intelligence agencies responsible for national security ) under LAW DATE ( “ DPA ” – see paragraphs CARDINAL to CARDINAL below ) . The object of the requests was to discover whether information about him was being processed by the agencies and to obtain access to the content of the information . Both requests were refused on the basis that the information requested was exempt from the disclosure requirements of the DATE Act on the grounds of national security under certificates issued by the Secretary of ORG on DATE ( MICARDINAL ) and DATE ( ORG ) .

On DATE the applicant lodged CARDINAL complaints with ORG ( “ IPT ” ) . First , the applicant complained under sections CARDINAL(CARDINAL)(b ) and CARDINAL ) of ORG ( “ RIPA ” – see paragraphs CARDINAL below ) that his communications were being intercepted in “ challengeable circumstances ” , within the meaning of section CARDINAL(CARDINAL ) RIPA ( i.e. under an interception warrant or in circumstances in which there ought to have been an interception warrant or where consideration ought to have been given to obtaining an interception warrant ) . Second , the applicant complained under sections DATE ) and CARDINAL ) of LAW DATE ( “ HRA ” ) and section CARDINAL(CARDINAL)(a ) RIPA that there was an unlawful interference with his rights under LAW .

The applicant 's Grounds of Claim and Complaint outlined the grounds for bringing the proceedings as follows :

“ CARDINAL(a ) That the authorities ' conduct was , and is , incompatible with his rights under LAW and a violation of equivalent rights of his at common law . Such conduct is unlawful as a result of ORG s. DATE ) and forms the basis for a complaint under RIPA s. DATE .

( b ) To the extent any such conduct purports to have the authority of a warrant issued or renewed under ORG Part I or the corresponding predecessor provisions of ORG DATE ( “ IOCA ” ) , the issue and renewal of that warrant , as well as the conduct itself , has at all times lacked the necessary justification , whether under the express provisions of ORG I ( or IOCA ) , PERSON ) of the LAW , or the general law .

( c ) Moreover the authorities ' conduct was and is unlawful because in breach of the requirements of LAW DATE ( “ DPA ” ) . Conduct in breach of those requirements takes place in challengeable circumstances under RIPA s. CARDINAL(CARDINAL ) and ( CARDINAL ) and is also incompatible with the Complainant 's rights under LAW .

In addition , the Complainant relies in these proceedings on his right to a fair hearing under Article CARDINAL ) of the LAW . In light of that right , the Complainant makes certain submissions about the way in which these proceedings ought to be conducted ... ”

The applicant requested specific directions regarding the conduct of the proceedings in order to ensure the protection of his Convention rights under LAW . In particular , he requested that his arguments and evidence be presented at an oral hearing ; that all hearings be conducted in public ; that there be mutual disclosure and inspection between the parties of all witness statements and evidence upon which parties sought to rely and exchange of skeleton arguments in relation to planned legal submissions ; that evidence of each party be heard in the presence of the other party or their legal representatives , with oral evidence being open to cross - examination by the other party ; that any opinion received from a Commissioner be disclosed to the parties , who would have the opportunity to make oral representations in light of it ; that each party be able to apply for a derogation from any of the above in relation to a particular piece of evidence ; and that , following its final determination , the ORG state its findings and give reasons for its conclusions on each relevant issue . He argued that to the extent that the ORG 's rules of procedure ( see paragraphs DATE below ) prevented the directions sought , they were incompatible with his right to a fair hearing .

The Grounds of Claim and Complaint referred to the applicant 's belief that his communications were being intercepted and that any warrant in place was being continually renewed .

Paragraph CARDINAL of the Grounds of Claim and Complaint noted :

“ So far as the proceedings are brought in reliance on ORG s. CARDINAL(CARDINAL)(a ) or ( b ) , the Complainant submits that :

( a ) The interception , and retention or other processing of intercept product , by any of the Respondents amounts to an interference with the Complainant 's right to respect for private life and correspondence protected by LAW ;

( b ) The interception and processing have at no time been in accordance with the law as required by LAW ;

( c ) The interception and its purported authorisation ( if any ) , and processing , have at no time been justified as necessary in a NORP society as required by Article CARDINAL(CARDINAL ) . ”

Paragraph CARDINAL of FAC expanded on the applicant 's submissions :

“ In particular , the Complainant submits that :

( a ) the proper inference from the circumstances described by the Complainant , amplified by the refusal of the [ authorities ] to deny the activities alleged , is that it is established on the balance of probabilities that the interception and processing took place . At minimum there is a reasonable likelihood that interception and processing ... has taken place and continues to take place ( PERSON and ORG v. GPE , CARDINAL , EComHR Report CARDINAL.CARDINAL.CARDINAL , paras . CARDINAL - CARDINAL ) .

( b ) The interception is not in accordance with the law so far as involving a breach of any requirement of the ORG ( including ORG ) ...

( c ) The complainant poses no risk to national security nor in his case could any other ground for authorising interception of his communications reasonably be considered to exist . It can not be said that interception of his communications has at any material time been a necessary or proportionate interference ... with his rights under LAW ) . ”

As to remedies , LOC noted the following :

“ CARDINAL . If the ORG finds that the Complainant succeeds on the claim or complaint , it is asked to make ... :

( a ) a final order prohibiting each Respondent from intercepting any communication by the Complainant ... or retaining or otherwise processing the product of any such interception , except on the grounds , and subject to the procedure , provided for by ORG I ;

( b ) an order ... quashing or cancelling any warrant or authorisation relating to any such interception ;

( c ) an order requiring the destruction of any product of such interception ...

( d ) an award of compensation ... and/or damages ... for the loss and damage sustained by the Complainant in consequence of the matters complained of ( including economic loss resulting from interference with his business communications ) . ”

On DATE , the ORG , presided over by Lord Justice Mummery , issued a joint Ruling on Preliminary Issues of Law in the applicant 's case together with a case involving a complaint by ORG and others in which a similar challenge to the ORG 's Rules was made ( see paragraphs DATE below ) .

On DATE , the ORG , again presided over by Lord Justice Mummery , issued a second ruling on preliminary issues of law in the applicant 's case . In the introduction to its ruling , the ORG summarised the case before it as follows :

“ CARDINAL . On DATE the Complainant made ( a ) a complaint to the ORG under LAW ... and ( b ) a claim under LAW DATE ... in respect of alleged ongoing interception by CARDINAL or more of the respondent agencies ( ORG , ORG and the Commissioner of Police for the ORG ) over a period dating back to DATE ...

The Complainant also alleges harassment , intrusive surveillance , interference with property , removal of documents , interference with a web site and e - mails and interception of privileged communications by the respondent agencies .

The Complainant seeks a final order prohibiting the agencies from intercepting any communication by him in the course of its transmission by means of a telecommunications system or retaining or otherwise processing the product of any such interception except on the grounds and subject to the procedure provided by ORG Part I.

He also seeks an order requiring the destruction of any product of such interception held by each respondent , whether or not obtained pursuant to any warrant or authorisation ; and an award of compensation under s CARDINAL(CARDINAL ) RIPA and/or damages sustained by the Complainant in consequence of the matters complained of . ”

The ruling dealt with a number of matters relating to the extent of its jurisdiction in respect of the applicant 's complaints relating to conduct prior to the entry into force of ORG .

Following its ruling of DATE , the ORG proceeded to examine the applicant 's specific complaints in private .

On DATE , the ORG notified the applicant that no determination had been made in his favour in respect of his complaints . This meant either that there had been no interception or that any interception which took place was lawful .

Section CARDINAL(CARDINAL ) DPA grants individuals the right to request details of any information about them held by persons or organisations which record , store , or process personal data .

Under section CARDINAL DPA , personal data is exempt from disclosure under section CARDINAL(CARDINAL ) if an exemption is required for the purpose of safeguarding national security .

The ORG incorporates the ORG into GPE law . Section DATE ) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right , except where it is constrained to act in that way as a result of primary legislation which can not be interpreted so as to be compatible with Convention rights . Under section ORG ) , a person claiming that a public authority has acted unlawfully under section DATE ) may bring proceedings against it in the appropriate court or rely on the Convention right in any legal proceedings .

NORP Under section CARDINAL(CARDINAL ) , if a court is satisfied that a provision of primary legislation is incompatible with a Convention right , it may make a declaration of that incompatibility . “ Court ” , in CARDINAL , is defined as meaning ORG ; ORG of ORG ; ORG ; in GPE , ORG of Justiciary ( sitting otherwise than as a trial court ) or ORG ; or in GPE and GPE or GPE , ORG or ORG . Section PERSON ) clarifies that a declaration of incompatibility does not affect the validity , continuing operation or enforcement of the legislative provision in question and is not binding on the parties to the proceedings in which it is made .

Since DATE , the interception of communications has been regulated by ORG ( “ RIPA ” ) . The explanatory notes which accompany ORG explain that the main purpose of RIPA is to ensure that investigatory powers are exercised in accordance with human rights .

Section CARDINAL RIPA provides for the adoption of codes of practice by the Secretary of ORG in relation to the exercise and performance of his powers and duties under LAW . Draft codes of practice must be laid before ORG and are public documents . They can only enter into force in accordance with an order of the Secretary of ORG . The Secretary of ORG can only make such an order if a draft of the order has been laid before ORG and approved by a resolution of each ORG .

Under section CARDINAL(CARDINAL ) RIPA , a person exercising or performing any power or duty relating to interception of communications must have regard to the relevant provisions of a code of practice . The provisions of a code of practice may , in appropriate circumstances , be taken into account by courts and tribunals under LAW RIPA .

The Interception of Communications Code of Practice ( “ the LAW ” ) entered into force on DATE . It is now available on ORG website .

Interception is permitted in several cases , exhaustively listed in section CARDINAL(CARDINAL ) RIPA . Section CARDINAL(CARDINAL)(b ) , the relevant provision in the present case , provides that interception is lawful if authorised by an interception warrant . Any unlawful interception is a criminal offence under section CARDINAL(CARDINAL ) .

Section CARDINAL(CARDINAL ) defines “ interception ” as follows :

“ For the purposes of this LAW , but subject to the following provisions of this section , a person intercepts a communication in the course of its transmission by means of a telecommunication system if , and only if , he–

( a ) so modifies or interferes with the system , or its operation ,

( b ) so monitors transmissions made by means of the system , or

( c ) so monitors transmissions made by wireless telegraphy to or from apparatus comprised in the system ,

as to make some or all of the contents of the communication available , while being transmitted , to a person other than the sender or intended recipient of the communication . ”

Section CARDINAL ) allows the Secretary of ORG to issue a warrant authorising the interception of the communications described in the warrant . Under section CARDINAL(CARDINAL ) , no warrant for interception of internal communications ( i.e. communications within GPE ) shall be issued unless the Secretary of ORG believes :

“ ( a ) that the warrant is necessary on grounds falling within subsection ( CARDINAL ) ; and

( b ) that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct .

Section CARDINAL(CARDINAL ) provides :

“ Subject to the following provisions of this section , a warrant is necessary on grounds falling within this subsection if it is necessary–

( a ) in the interests of national security ;

( b ) for the purpose of preventing or detecting serious crime ; [ or ]

( c ) for the purpose of safeguarding the economic well - being of GPE ... ”

The term “ national security ” is not defined in ORG . However , it has been clarified by ORG Commissioner appointed under ORG 's predecessor ( the Interception of Communications Act DATE ) who , in his DATE report , stated that he had adopted the following definition :

“ [ activities ] which threaten the safety or well - being of the ORG , and which are intended to undermine or overthrow Parliamentary democracy by political , industrial or violent means . ”

Section CARDINAL(CARDINAL)(b ) RIPA defines “ serious crime ” as crime which satisfies CARDINAL of the following criteria :

“ ( a ) that the offence or CARDINAL of the offences that is or would be constituted by the conduct is an offence for which a person who has attained the age of CARDINAL and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of DATE or more ;

( b ) that the conduct 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 . ”

Section CARDINAL(CARDINAL ) provides :

“ For the purposes of this LAW detecting crime shall be taken to include–

( a ) establishing by whom , for what purpose , by what means and generally in what circumstances any crime was committed ; and

( b ) the apprehension of the person by whom any crime was committed ;

and any reference in this LAW to preventing or detecting serious crime shall be construed accordingly ... ”

Under section CARDINAL(CARDINAL ) , the Secretary of ORG must , when assessing whether the requirements in section CARDINAL(CARDINAL ) are met , consider whether the information sought to be obtained under the warrant could reasonably be obtained by other means .

Section CARDINAL(CARDINAL ) provides that a warrant shall not be considered necessary for the purpose of safeguarding the economic well - being of the GPE unless the information which it is thought necessary to obtain is information relating to the acts or intentions of persons outside GPE .

Section CARDINAL(CARDINAL)(a ) requires the Secretary of ORG personally to issue all warrants of the nature at issue in the present case , except in cases of urgency where he must nonetheless personally authorise the issuing of the warrant . Section CARDINAL(CARDINAL ) provides an exhaustive list of those who may apply for an interception warrant , including the heads of national intelligence bodies , heads of police forces and the ORG and Excise Commissioners .

Paragraphs CARDINAL to CARDINAL of the LAW provide additional guidance on the application of the proportionality and necessity test in section CARDINAL(CARDINAL ) :

“ CARDINAL Obtaining a warrant under the LAW will only ensure that the interception authorised is a justifiable interference with an individual 's rights under LAW ( the right to privacy ) if it is necessary and proportionate for the interception to take place . The LAW recognises this by first requiring that the Secretary of ORG believes that the authorisation is necessary on CARDINAL or more of the statutory grounds set out in section CARDINAL(CARDINAL ) of the LAW . This requires him to believe that it is necessary to undertake the interception which is to be authorised for a particular purpose falling within the relevant statutory ground .

CARDINAL Then , if the interception is necessary , the Secretary of ORG must also believe that it is proportionate to what is sought to be achieved by carrying it out . This involves balancing the intrusiveness of the interference , against the need for it in operational terms . Interception of communications will not be proportionate if it is excessive in the reasonably be obtained by other means . Further , all interception should be carefully managed to meet the objective in question and must not be arbitrary or unfair . ”

Section CARDINAL sets out the requirements as to the contents of an interception warrant as regards the identification of the communications to be intercepted :

“ ( CARDINAL ) An interception warrant must name or describe either–

( a ) CARDINAL person as the interception subject ; or

( b ) a single set of LOC as the LOC in relation to which the interception to which the warrant relates is to take place .

( CARDINAL ) The provisions of an interception warrant describing communications the interception of which is authorised or required by the warrant must comprise CARDINAL or more schedules setting out the addresses , numbers , apparatus or other factors , or combination of factors , that are to be used for identifying the communications that may be or are to be intercepted .

( CARDINAL ) Any factor or combination of factors set out in accordance with subsection ( CARDINAL ) must be one that identifies communications which are likely to be or to include–

( a ) communications from , or intended for , the person named or described in the warrant in accordance with subsection ( CARDINAL ) ; or

( b ) communications originating on , or intended for transmission to , the premises so named or described . ”

Paragraph CARDINAL.CARDINAL of the PERSON provides :

“ An application for a warrant is made to the Secretary of ORG . Interception warrants , when issued , are addressed to the person who submitted the application . This person may then serve a copy upon any person who may be able to provide assistance in giving effect to that warrant . Each application , a copy of which must be retained by the applicant , should contain the following information :

Background to the operation in question .

Person or premises to which the application relates ( and how the person or LOC feature in the operation ) .

Description of the communications to be intercepted , details of the communications service provider(s ) and an assessment of the feasibility of the interception operation where this is relevant .

Description of the conduct to be authorised as considered necessary in order to carry out the interception , where appropriate .

An explanation of why the interception is considered to be necessary under the provisions of section CARDINAL(CARDINAL ) .

A consideration of why the conduct to be authorised by the warrant is proportionate to what is sought to be achieved by that conduct .

A consideration of any unusual degree of collateral intrusion and why that intrusion is justified in the circumstances . In particular , where the communications in question might affect religious , medical or journalistic confidentiality or legal privilege , this must be specified in the application .

Where an application is urgent , supporting justification should be provided .

An assurance that all material intercepted will be handled in accordance with the safeguards required by LAW . ”

Section CARDINAL RIPA is entitled “ Restrictions on use of intercepted material etc . ” and provides , insofar as relevant to internal communications , as follows :

“ ( CARDINAL ) ... it shall be the duty of the Secretary of ORG to ensure , in relation to all interception warrants , that such arrangements are in force as he considers necessary for securing–

( a ) that the requirements of subsections ( CARDINAL ) and ( CARDINAL ) are satisfied in relation to the intercepted material and any related communications data ;

( CARDINAL ) The requirements of this subsection are satisfied in relation to the intercepted material and any related communications data if each of the following–

( a ) the number of persons to whom any of the material or data is disclosed or otherwise made available ,

( b ) the extent to which any of the material or data is disclosed or otherwise made available ,

( c ) the extent to which any of the material or data is copied , and

( d ) the number of copies that are made ,

is limited to the minimum that is necessary for the authorised purposes .

( CARDINAL ) The requirements of this subsection are satisfied in relation to the intercepted material and any related communications data if each copy made of any of the material or data ( if not destroyed earlier ) is destroyed as soon as there are no longer any grounds for retaining it as necessary for any of the authorised purposes .

( CARDINAL ) For the purposes of this section something is necessary for the authorised purposes if , and only if–

( a ) it continues to be , or is likely to become , necessary as mentioned in section CARDINAL(CARDINAL ) ;

( CARDINAL ) The arrangements for the time being in force under this section for securing that the requirements of subsection ( CARDINAL ) are satisfied in relation to the intercepted material or any related communications data must include such arrangements as the Secretary of ORG considers necessary for securing that every copy of the material or data that is made is stored , for so long as it is retained , in a secure manner ... ”

Section CARDINAL sets out extra safeguards which apply in the case of interception of external communications only .

Section DATE imposes a broad duty on all those involved in interception under ORG to keep secret , among other matters , “ everything in the intercepted material ” ( section CARDINAL(CARDINAL)(e ) ) . Under section CARDINAL(CARDINAL ) , disclosure of such material is a criminal offence punishable by DATE imprisonment .

Paragraph CARDINAL.CARDINAL of the Code requires all material intercepted under the authority of a section CARDINAL(l ) warrant to be handled in accordance with safeguards put in place by the Secretary of ORG under LAW of the LAW . Details of the safeguards are made available to the Commissioner ( see paragraph CARDINAL below ) and any breach of the safeguards must be reported to him .

Paragraphs CARDINAL to CARDINAL of the Code provide further details of the relevant safeguards :

“ Dissemination of intercepted material

CARDINAL The number of persons to whom any of the material is disclosed , and the extent of disclosure , must be limited to the minimum that is necessary for the authorised purposes set out in section CARDINAL ) of the LAW . This obligation applies equally to disclosure to additional persons within an agency , and to disclosure outside the agency . It is enforced by prohibiting disclosure to persons who do not hold the required security clearance , and also by the need - to - know principle : intercepted material must not be disclosed to any person unless that person 's duties , which must relate to one of the authorised purposes , are such that he needs to know about the material to carry out those duties . In the same way only so much of the material may be disclosed as the recipient needs ; for example if a summary of the material will suffice , no more than that should be disclosed .

CARDINAL The obligations apply not just to the original interceptor , but also to anyone to whom the material is subsequently disclosed . In some cases this will be achieved by requiring the latter to obtain the originator 's permission before disclosing the material further . In others , explicit safeguards are applied to secondary recipients .

Copying

CARDINAL Intercepted material may only be copied to the extent necessary for the authorised purposes set out in section CARDINAL ) of the LAW . Copies include not only direct copies of the whole of the material , but also extracts and summaries which identify themselves as the product of an interception , and any record referring to an interception which is a record of the identities of the persons to or by whom the intercepted material was sent . The restrictions are implemented by requiring special treatment of such copies , extracts and summaries that are made by recording their making , distribution and destruction .

Storage

CARDINAL Intercepted material , and all copies , extracts and summaries of it , must be handled and stored securely , so as to minimise the risk of loss or theft . It must be held so as to be inaccessible to persons without the required level of security clearance . This requirement to store intercept product securely applies to all those who are responsible for the handling of this material , including communications service providers ...

Destruction

CARDINAL.CARDINAL Intercepted material , and all copies , extracts and summaries which can be identified as the product of an interception , must be securely destroyed as soon as it is no longer needed for any of the authorised purposes . If such material is retained , it should be reviewed at appropriate intervals to confirm that the justification for its retention is still valid under section CARDINAL(CARDINAL ) of the LAW . ”

Specific guidance is given as to the vetting of those involved in intercept activities in paragraph CARDINAL of the Code :

“ CARDINAL Each intercepting agency maintains a distribution list of persons who may have access to intercepted material or need to see any reporting in relation to it . All such persons must be appropriately vetted . Any person no longer needing access to perform his duties should be removed from any such list . Where it is necessary for an officer of CARDINAL agency to disclose material to another , it is the former 's responsibility to ensure that the recipient has the necessary clearance . ”

The ORG 's policy on security vetting was announced to ORG by the Prime Minister on DATE . In his statement , the Prime Minister explained the procedure for security vetting and the kinds of activities which would lead to the exclusion of an individual from participation in work vital to the interests of the ORG .

The Security Service Act DATE and LAW DATE impose further obligations on the heads of the security and intelligence services to ensure the security of information in their possession .

Section PERSON ) provides that an interception warrant for internal communications ceases to have effect at the end of the “ relevant period ” The “ relevant period ” is defined in section ORG ) as :

“ ( a ) in relation to an unrenewed warrant issued in a case [ issued ] under the hand of a senior official , ... the period ending with DATE following DATE of the warrant 's issue ;

( b ) in relation to a renewed warrant the latest renewal of which was by an instrument endorsed under the hand of the Secretary of ORG with a statement that the renewal is believed to be necessary on grounds falling within section CARDINAL(CARDINAL)(a ) [ national security ] or ( c ) [ economic well - being ] , ... the period of DATE beginning with DATE of the warrant 's renewal ; and

( c ) in all other cases , ... DATE beginning with DATE of the warrant 's issue or , in the case of a warrant that has been renewed , of its latest renewal . ”

Section CARDINAL(CARDINAL)(b ) provides that an interception warrant may be renewed by the Secretary of ORG at any time before its expiry where he believes that the warrant continues to be necessary on grounds falling within section CARDINAL(CARDINAL ) .

NORP The Secretary of ORG is required under LAW ) to cancel an interception warrant if he is satisfied that the warrant is no longer necessary on grounds falling within section CARDINAL(CARDINAL ) .

Section CARDINAL(CARDINAL ) imposes an obligation on the Secretary of ORG to delete any factor set out in a schedule to an interception warrant which he considers is no longer relevant for identifying communications which , in the case of that warrant , are likely to be or to include communications from , or intended for , the interception subject .

Paragraph CARDINAL of the PERSON provides :

“ The Secretary of ORG may renew a warrant at any point before its expiry date . Applications for renewals must be made to the Secretary of ORG and should contain an update of the matters outlined in paragraph CARDINAL above . In particular , the applicant should give an assessment of the value of interception to the operation to date and explain why he considers that interception continues to be necessary for CARDINAL or more of the purposes in section CARDINAL(CARDINAL ) . ”

Paragraph CARDINAL.CARDINAL of the PERSON provides :

“ The Secretary of ORG is under a duty to cancel an interception warrant if , at any time before its expiry date , he is satisfied that the warrant is no longer necessary on grounds falling within section CARDINAL(CARDINAL ) of the LAW . Intercepting agencies will therefore need to keep their warrants under continuous review . In practice , cancellation instruments will be signed by a senior official on his behalf . ”

Paragraph CARDINAL.CARDINAL of the LAW imposes record - keeping obligations on intercepting agencies and provides :

“ The oversight regime allows the Interception of Communications Commissioner to inspect the warrant application upon which the Secretary of ORG based his decision , and the applicant may be required to justify the content . Each intercepting agency should keep the following to be made available for scrutiny by the Commissioner as he may require :

all applications made for warrants complying with section CARDINAL(l ) and applications made for the renewal of such warrants ;

all warrants , and renewals and copies of schedule modifications ( if any ) ;

where any application is refused , the grounds for refusal as given by the Secretary of ORG ;

the dates on which interception is started and stopped . ”

Section CARDINAL RIPA provides that the Prime Minister shall appoint an Interception of Communications Commissioner ( “ the Commissioner ” ) . He must be a person who holds or has held high judicial office . The Commissioner is appointed for a DATE , renewable term . To date , there have been CARDINAL Commissioners appointed under RIPA . Both are former judges of ORG .

The Commissioner 's functions include to keep under review the exercise and performance by the Secretary of ORG of powers and duties in relation to interception conferred or imposed on him by ORG ; the exercise and performance of powers and duties in relation to interception by the persons on whom such powers or duties are conferred or imposed ; and the adequacy of the arrangements by virtue of which the duty which is imposed on the Secretary of ORG by section CARDINAL ( safeguards – see paragraph CARDINAL above ) is sought to be discharged .

Section CARDINAL RIPA places a duty on those involved in the authorisation or execution of interception warrants to disclose to the Commissioner all documents and information which he requires in order to carry out his functions . As noted above ( see paragraph CARDINAL ) , the Code requires intercepting agencies to keep accurate and comprehensive records for this purpose .

NORP In his DATE report , the Commissioner described his inspections as follows :

“ CARDINAL . In accordance with [ my ] duties I have continued my practice of making twice yearly visits to ... the intercepting agencies and the departments of the Secretaries of State / Ministers which issue the warrants . Prior to each visit , I obtain a complete list of warrants issued or renewed or cancelled since my previous visit . I then select , largely at random , a sample of warrants for inspection . In the course of my visit I satisfy myself that those warrants fully meet the requirements of ORG , that proper procedures have been followed and that the relevant safeguards and ORG have been followed . During each visit I review each of the files and the supporting documents and , when necessary , discuss the cases with the officers concerned . I can view the product of interception . It is of first importance to ensure that the facts justified the use of interception in each case and that those concerned with interception fully understand the safeguards and ORG .

I continue to be impressed by the quality , dedication and enthusiasm of the personnel carrying out this work on behalf of the ORG and the people of GPE . They have a detailed understanding of the legislation and are always anxious to ensure that they comply both with the legislation and the appropriate safeguards ... ”

The Commissioner is required to report to the Prime Minister if he finds that there has been a violation of the provisions of ORG or if he considers that the safeguards under section CARDINAL have proved inadequate ( sections CARDINAL(CARDINAL ) and ( CARDINAL ) RIPA ) . The Commissioner must also make an DATE report to the Prime Minister regarding the exercise of his functions ( section CARDINAL(CARDINAL ) ) . Under section PERSON ) , the Prime Minister must lay the DATE report of the Commissioner before ORG . Finally , the Commissioner is required to assist the ORG with any request for information or advice it may make ( section ORG ) and paragraph CARDINAL below ) ) .

NORP In his DATE report , the Commissioner noted , as regards the discharge of their duties by the Secretaries of State :

“ CARDINAL . ... I have been impressed with the care that they take with their warrantry work , which is very time consuming , to ensure that warrants are issued only in appropriate cases and , in particular , in ensuring that the conduct authorised is proportionate to what is sought to be achieved by the intercepts . ”

At paragraph CARDINAL , on the question of safeguards , he said :

“ ... my advice and approval were sought and given in respect of the safeguard documents either before or shortly after DATE . The ORG Secretary also sought my advice in relation to them and they were approved by him ... ”

As to the need for secret surveillance powers , the Commissioner commented :

“ CARDINAL . The interception of communications is , as my predecessors have expressed in their ORG , an invaluable weapon for the purpose set out in section CARDINAL(CARDINAL ) of ORG and , in particular , in the battle against serious crime ... ”

In his report for DATE , the Commissioner noted :

“ CARDINAL . Many members of the public are suspicious about the interception of communications , and some believe that their own conversations are subject to unlawful interception by the security , intelligence or law enforcement agencies ... In my oversight work I am conscious of these concerns . However , I am as satisfied as I can be that the concerns are , in fact , unfounded . Interception of an individual 's communications can take place only after a Secretary of ORG has granted a warrant and the warrant can be granted on strictly limited grounds set out in LAW , essentially the interests of national security and the prevention or detection of serious crime . Of course , it would theoretically be possible to circumvent this procedure , but there are in place extensive safeguards to ensure that this can not happen , and it is an important part of my work to ensure that these are in place , and that they are observed . Furthermore , any attempt to get round the procedures which provide for legal interception would , by reason of the safeguards , involve a major conspiracy within the agency concerned which I believe would , for practical purposes , be impossible . I am as satisfied as it is possible to be that deliberate unlawful interception of communications of the citizen does not take place ... ”

He said of the section CARDINAL safeguards :

“ DATE . In addressing the safeguards contained within CARDINAL of RIPA , ORG developed a new set of internal compliance documentation for staff , together with an extensive training programme that covered staff responsibilities under both ORG and LAW . This compliance documentation was submitted to the Foreign Secretary who was satisfied that it described and governed the arrangements required under LAW . I have also been told it also constituted the written record of the arrangements required to be put in place by the Director , ORG , under section CARDINAL(CARDINAL)(a ) of the Intelligence Services Act DATE ( to ensure that no information is obtained or disclosed by ORG except so far as is necessary for its statutory functions ) . In discharging my functions under LAW ) , I examined the documentation and the processes which underpin it and satisfied myself that adequate arrangements existed for the discharge of ORG duties under LAW . Of course , ORG recognises that its compliance processes must evolve over time , particularly as they become more familiar with the intricacies of the new legislation and develop new working practices , and that the process of staff education remains a continuing one . To this end , ORG has developed further training programmes and is issuing revised compliance documentation as part of the ongoing process ( see also ... paragraph CARDINAL under Safeguards ) .

In advance of the coming into force of ORG , ORG approached me as to the warrants it would seek after that date and provided a detailed analysis as to how those warrants would be structured – this was helpful as it gave me an insight into how ORG saw the workings of ORG and permitted me to comment in advance . Since the commencement of ORG , in reviewing warrants I have looked carefully at the factors to be considered by the Secretary of ORG when determining whether to issue an interception warrant , and especially the new requirement to consider ' proportionality ' under section [ CARDINAL ) ] of ORG . ”

Again , he commented on the diligence of the authorities in carrying out their duties under LAW :

“ CARDINAL . Sections CARDINAL and CARDINAL of ORG lay a duty on the Secretary of ORG to ensure that arrangements are in force as safeguards in relation to dissemination , disclosure , copying , storage , and destruction etc . , of intercepted material . These sections require careful and detailed safeguards to be drafted by each of the agencies referred to earlier in this ORG and for those safeguards to be approved by the Secretary of ORG . This had been done . I have been impressed by the care with which these documents have been drawn up , reviewed and updated in the light of technical and administrative developments . Those involved in the interception process are aware of the invasive nature of this technique , and care is taken to ensure that intrusions of privacy are kept to the minimum . There is another incentive to agencies to ensure that these documents remain effective in that the value of interception would be greatly diminished as a covert intelligence tool should its existence and methodology become too widely known . The sections CARDINAL and QUANTITY requirements are very important . I am satisfied that the agencies are operating effectively within their safeguards . ”

DATE . The Commissioner 's DATE report noted :

“ CARDINAL . ... As I mentioned in my last Report I have been impressed by the care with which [ the safeguard ] documents have been drawn up . My advice and approval was sought for the documents and I am approached to agree amendments to the safeguards when they are updated in light of technical and administrative developments . ”

This was repeated in paragraph CARDINAL of his DATE report .

NORP In his DATE report , the Commissioner explained his role as follows :

“ CARDINAL . ... essentially I see the role of Commissioner as encompassing these primary headings :

( a ) To protect people in GPE from any unlawful intrusion of their privacy . This is provided for by LAW . I must be diligent to ensure that this does not happen , and alert to ensure that there are systems in place so that this does not and can not happen . Over the long period that I have held my present post , I have found no evidence whatsoever of any desire within the ORG or the Law Enforcement Agencies in this field to act wrongfully or unlawfully . On the contrary , I have found a palpable desire on the part of all these GPE to ensure that they do act completely within the CARDINAL walls of the law . To this end , they welcome the oversight of the Commissioner and over DATE have frequently sought my advice on issues that have arisen , and they have invariably accepted it . In any event , I believe that the legislation together with the safeguards and ORG that are in place make it technically virtually impossible to deliberately intercept a citizen 's communications unlawfully with intent to avoid legal requirements .

( b ) To assist the Agencies to do the work entrusted to them and , bearing in mind the number of organisations that I am now required to oversee , this occurs quite frequently . My work is , of course , limited to the legal as opposed to the operational aspects of their work . They take great care with their work and I have been impressed by its quality .

( c ) To ensure that proper safeguards and Codes of Practice are in place to protect the public and the Agencies themselves . These have to be approved by the Secretaries of ORG . But every Secretary of ORG with whom I have worked has required to be informed as to whether the Commissioner has approved them before he or she is willing to do so .

( d ) To advise Ministers , and Government Departments , in relation to issues arising on the interception of communications , the acquisition and disclosure of communications data , to approve the safeguards documents and ORG . ”

The Commissioner said of the Secretaries of ORG whom he had met in DATE :

“ DATE . It is clear to me that each of them gives a substantial amount of time and takes considerable care to satisfy himself or herself that warrants are necessary for the authorised purposes , and that what is proposed is proportionate . If the Secretary of ORG wishes to have further information in order to be satisfied that he or she should grant the warrant then it is requested and given . Outright and final refusal of an application is comparatively rare , because the requesting agencies and the senior officials in the Secretary of ORG 's ORG scrutinise the applications with care before they are submitted for approval . However , the Secretary of ORG may refuse to grant the warrant if he or she considers , for example , that the strict requirements of necessity or proportionality are not met , and the agencies are well aware that the Secretary of ORG does not act as a ' rubber stamp ' . ”

In his DATE report , The Commissioner commented on the importance of interception powers in tackling terrorism and serious crime :

“ CARDINAL I continue to be impressed as to how interception has contributed to a number of striking successes during DATE . It has played a key role in numerous operations including , for example , the prevention of murders , tackling large - scale drug importations , evasion of Excise duty , people smuggling , gathering intelligence both within GPE and overseas on terrorist and various extremist organisations , confiscation of firearms , serious violent crime and terrorism . I have provided fully detailed examples in FAC to this Report . I think it is very important that the public is re - assured as to the benefits of this highly intrusive investigative tool particularly in light of the on - going debate about whether or not intercept product should be used as evidence in a court of law .

CARDINAL As I said in my first ORG DATE , the interception of communications is an invaluable weapon for the purposes set out in section CARDINAL(CARDINAL ) of RIPA . It has continued to play a vital part in the battle against terrorism and serious crime , and one that would not have been achieved by other means ... ”

As regards errors by the relevant agencies in the application of ORG 's provisions , he noted :

“ CARDINAL interception errors and breaches have been reported to me during the course of DATE . This is the same number of errors reported in my first DATE Report ( which was for a shorter period ) and is a significant decrease in the number reported by my predecessor . I consider the number of errors to be too high . By way of example , details of some of these errors are recorded below . It is very important from the point of view of the public that I stress that none of the breaches or errors were deliberate , that all were caused by human error or procedural error or by technical problems and that in every case either no interception took place or , if there was interception , the product was destroyed immediately on discovery of the error . The most common cause of error tends to be the simple transposition of numbers by mistake e.g. , DATE instead of DATE . The examples that I give are typical of the totality and are anonymous so far as the targets are concerned . Full details of all the errors and breaches are set out in LOC . ”

According to the statistics in the report , on DATE , CARDINAL interception warrants issued by the ORG Secretary were in force .

The ORG was established under section CARDINAL ) RIPA to hear allegations by citizens of wrongful interference with their communications as a result of conduct covered by RIPA . Members of the tribunal must hold or have held high judicial office or be a qualified lawyer of DATE standing . Any person may bring a claim before the ORG and , save for vexatious or frivolous applications , the ORG must determine all claims brought before it ( sections CARDINAL(CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) RIPA ) .

DATE . Section CARDINAL(CARDINAL ) provides that the ORG is the only appropriate forum in relation to proceedings for acts incompatible with Convention rights which are proceedings against any of the intelligence services ; and complaints by persons who allege to have been subject to the investigatory powers of ORG . It has jurisdiction to investigate any complaint that a person 's communications have been intercepted and , where interception has occurred , to examine the authority for such interception . Sections CARDINAL(CARDINAL ) and CARDINAL(CARDINAL)(c ) provide that the ORG is to apply the principles applicable by a court on an application for judicial review .

Under LAW ) ORG , there is no appeal from a decision of the ORG “ except to such extent as the Secretary of ORG may by order otherwise provide ” . No order has been passed by the Secretary of ORG .

Under section PERSON ) , the ORG has the power to require a relevant Commissioner to provide it with all such assistance ( including the Commissioner 's opinion as to any issue falling to be determined by the ORG ) as it thinks fit . Section PERSON ) and ( CARDINAL ) requires those involved in the authorisation and execution of an interception warrant to disclose or provide to the ORG all documents and information it may require .

Section CARDINAL(CARDINAL ) deals with reasons for the ORG 's decisions and provides that :

“ Where the ORG determine any proceedings , complaint or reference brought before or made to them , they shall give notice to the complainant which ( subject to any rules made by virtue of section CARDINAL(CARDINAL)(i ) ) shall be confined , as the case may be , to either—

( a ) a statement that they have made a determination in his favour ; or

( b ) a statement that no determination has been made in his favour . ”

The ORG has the power to award compensation and to make such other orders as it thinks fit , including orders quashing or cancelling any section CARDINAL(CARDINAL ) warrant and orders requiring the destruction of any records obtained under a section CARDINAL(CARDINAL ) warrant ( section CARDINAL(CARDINAL ) RIPA ) . In the event that a claim before the ORG is successful , the ORG is generally required to make a report to the Prime Minister ( section CARDINAL(CARDINAL ) ) .

As to procedure , section CARDINAL ) provides as follows :

“ Subject to any rules made under LAW , the ORG shall be entitled to determine their own procedure in relation to any proceedings , complaint or reference brought before or made to them . ”

Section CARDINAL(CARDINAL ) RIPA provides that the Secretary of ORG may make rules regulating any matters preliminary or incidental to , or arising out of , the hearing or consideration of any proceedings before it . Under section ORG ) , such rules may :

“ ( c ) prescribe the form and manner in which proceedings are to be brought before the ORG or a complaint or reference is to be made to the ORG ;

( f ) prescribe the forms of hearing or consideration to be adopted by the ORG in relation to particular proceedings , complaints or references ... ;

( g ) prescribe the practice and procedure to be followed on , or in connection with , the hearing or consideration of any proceedings , complaint or reference ( including , where applicable , the mode and burden of proof and the admissibility of evidence ) ;

( h ) prescribe orders that may be made by the ORG under section PERSON ) or ( CARDINAL ) ;

( i ) require information about any determination , award , order or other decision made by the ORG in relation to any proceedings , complaint or reference to be provided ( in addition to any statement under section CARDINAL ) ) to the person who brought the proceedings or made the complaint or reference , or to the person representing his interests . ”

Section CARDINAL(CARDINAL ) provides that in making the rules the Secretary of ORG shall have regard to :

“ ( a ) the need to secure that matters which are the subject of proceedings , complaints or references brought before or made to the ORG are properly heard and considered ; and

( b ) the need to secure that information is not disclosed to an extent , or in a manner , that is contrary to the public interest or prejudicial to national security , the prevention or detection of serious crime , the economic well - being of GPE or the continued discharge of the functions of any of the intelligence services . ”

NORP The Secretary of ORG has adopted rules to govern the procedure before the ORG in the form of ORG ( “ the Rules ” ) . The Rules cover various aspects of the procedure before the ORG . As regards disclosure of information , Rule CARDINAL provides :

“ ( CARDINAL ) The ORG shall carry out their functions in such a way as to secure that information is not disclosed to an extent , or in a manner , that is contrary to the public interest or prejudicial to national security , the prevention or detection of serious crime , the economic well - being of GPE or the continued discharge of the functions of any of the intelligence services .

( CARDINAL ) Without prejudice to this general duty , but subject to paragraphs ( CARDINAL ) and ( CARDINAL ) , the ORG may not disclose to the complainant or to any other person :

( a ) the fact that the ORG have held , or propose to hold , an oral hearing under rule ORG ) ;

( b ) any information or document disclosed or provided to the ORG in the course of that hearing , or the identity of any witness at that hearing ;

( c ) any information or document otherwise disclosed or provided to the ORG by any person pursuant to section CARDINAL ) of the LAW ( or provided voluntarily by a person specified in section CARDINAL(CARDINAL ) ) ;

( d ) any information or opinion provided to the ORG by a Commissioner pursuant to section PERSON ) of the Act ;

( e ) the fact that any information , document , identity or opinion has been disclosed or provided in the circumstances mentioned in sub - paragraphs ( b ) to ( d ) .

( CARDINAL ) The ORG may disclose anything described in paragraph ( CARDINAL ) with the consent of :

( a ) in the case of sub - paragraph ( a ) , the person required to attend the hearing ;

( b ) in the case of sub - paragraphs ( b ) and ( c ) , the witness in question or the person who disclosed or provided the information or document ;

( c ) in the case of sub - paragraph ( d ) , the Commissioner in question and , to the extent that the information or opinion includes information provided to the Commissioner by another person , that other person ;

( d ) in the case of sub - paragraph ( e ) , the person whose consent is required under this rule for disclosure of the information , document or opinion in question .

( CARDINAL ) The ORG may also disclose anything described in paragraph ( CARDINAL ) as part of the information provided to the complainant under rule CARDINAL ) , subject to the restrictions contained in rule CARDINAL ) and ( CARDINAL ) .

( CARDINAL ) The ORG may not order any person to disclose any information or document which the ORG themselves would be prohibited from disclosing by virtue of this rule , had the information or document been disclosed or provided to them by that person .

( CARDINAL ) The ORG may not , without the consent of the complainant , disclose to any person holding office under the ORG ( except a Commissioner ) or to any other person anything to which paragraph ( CARDINAL ) applies .

( CARDINAL ) This paragraph applies to any information or document disclosed or provided to the ORG by or on behalf of the complainant , except for ... statements [ as to the complainant 's name , address and date of birth and the public authority against which the proceedings are brought ] . ”

Rule CARDINAL deals with the forms of hearings and consideration of the complaint :

“ ( CARDINAL ) The ORG 's power to determine their own procedure in relation to section CARDINAL proceedings and complaints shall be subject to this rule .

( CARDINAL ) The ORG shall be under no duty to hold oral hearings , but they may do so in accordance with this rule ( and not otherwise ) .

( CARDINAL ) The ORG may hold , at any stage of their consideration , oral hearings at which the complainant may make representations , give evidence and call witnesses .

( CARDINAL ) The ORG may hold separate oral hearings which :

( a ) the person whose conduct is the subject of the complaint ,

( b ) the public authority against which the section CARDINAL proceedings are brought , or

( c ) any other person specified in section CARDINAL(CARDINAL ) of the LAW ,

may be required to attend and at which that person or authority may make representations , give evidence and call witnesses .

( CARDINAL ) Within a period notified by the ORG for the purpose of this rule , the complainant , person or authority in question must inform the ORG of any witnesses he or it intends to call ; and no other witnesses may be called without the leave of the ORG .

( CARDINAL ) The ORG 's proceedings , including any oral hearings , shall be conducted in private . ”

The taking of evidence is addressed in LAW :

“ ( CARDINAL ) The ORG may receive evidence in any form , and may receive evidence that would not be admissible in a court of law .

( CARDINAL ) The ORG may require a witness to give evidence on oath .

( CARDINAL ) No person shall be compelled to give evidence at an oral hearing under rule MONEY ) . ”

Finally , Rule CARDINAL provides guidance on notification to the complainant of the ORG 's findings :

“ ( CARDINAL ) In addition to any statement under section CARDINAL ) of the LAW , the ORG shall provide information to the complainant in accordance with this rule .

( CARDINAL ) Where they make a determination in favour of the complainant , the ORG shall provide him with a summary of that determination including any findings of fact .

( CARDINAL ) The duty to provide information under this rule is in all cases subject to the general duty imposed on the ORG by rule CARDINAL ) .

( CARDINAL ) No information may be provided under this rule whose disclosure would be restricted under rule CARDINAL ) unless the person whose consent would be needed for disclosure under that rule has been given the opportunity to make representations to the ORG . ”

In its joint ruling on preliminary issues of law ( see paragraph CARDINAL above ) , the ORG clarified a number of aspects of its procedure . The ORG sat , for the first time , in public . As regards the ORG procedures and the importance of the cases before it , the ORG noted :

“ CARDINAL . The challenge to rule ORG ) [ requiring oral hearings to be held in private ] and to most of the other rules governing the basic procedures of the ORG have made this the most significant case ever to come before the ORG . The ORG are left in no doubt that their rulings on the legal issues formulated by the parties have potentially important consequences for dealing with and determining these and future proceedings and complaints . Counsel and those instructing them were encouraged to argue all the issues in detail , in writing as well as at the oral hearings held over a period of DATE in DATE and DATE . At DATE the written submissions were completed when the parties provided , at the request of the ORG , final comments on how the Rules ought , if permissible and appropriate , to be revised and applied by the ORG , in the event of a ruling that CARDINAL or more of the Rules are incompatible with Convention rights and/or ultra vires . ”

The ORG concluded ( at paragraph CARDINAL ) that :

“ ... ( a ) the hearing of the preliminary issues should have been conducted in public , and not in private as stated in rule ORG ) ; ( b ) the reasons for the legal rulings should be made public ; and ( c ) in all other respects the Rules are valid and binding on the ORG and are compatible with Articles CARDINAL , CARDINAL and DATE of the Convention . ”

Specifically on the applicability of LAW to the proceedings before it , the ORG found :

“ CARDINAL . The conclusion of the ORG is that LAW applies to a person 's claims under section CARDINAL(CARDINAL)(a ) and to his complaints under section CARDINAL(CARDINAL)(b ) of ORG , as each of them involves ' the determination of his civil rights ' by the ORG within the meaning of Article CARDINAL ) . ”

After a review of the ORG 's case - law on the existence of a “ civil right ” , the ORG explained the reasons for its conclusions :

“ CARDINAL . The ORG agree with the Respondents that there is a sense in which the claims and complaints brought by virtue of s CARDINAL(CARDINAL ) of ORG fall within the area of public law . They arise out of the alleged exercise of very wide discretionary , investigatory , state powers by public authorities , such as the intelligence and security agencies and the police . They are concerned with matters of national security , of public order , safety and welfare . The function of the ORG is to investigate and review the lawfulness of the exercise of such powers . This is no doubt intended to ensure that the authorities comply with their relevant public law duties , such as by obtaining appropriate warrants and authorisations to carry out interception and surveillance .

The public law element is reinforced by the directions to the ORG in sections ORG ) and CARDINAL ) of ORG to apply to the determinations the same principles as would be applied by a court in judicial review proceedings . Such proceedings are concerned with the procedural and substantive legality of decisions and actions of public authorities .

The fact that activities , such as interception of communications and surveillance , may also impact on the Convention rights of individuals , such as the right to respect for private life and communications in DATE , does not of itself necessarily mean that the ORG make determinations of civil rights ...

Further , the power of the ORG to make an award of compensation does not necessarily demonstrate that the ORG determine civil rights ...

Applying the approach in the GPE cases that account should be taken of the content of the rights in question and of the effect of the relevant decision on them ... , the ORG conclude that the public law or public order aspects of the claims and complaints to the ORG do not predominate and are not decisive of the juristic character of the determinations of the ORG . Those determinations have a sufficiently decisive impact on the private law rights of individuals and organisations to attract the application of LAW .

The jurisdiction of the ORG is invoked by the initiation of claims and complaints by persons wishing to protect , and to obtain redress for alleged infringements of , their underlying rights of confidentiality and of privacy for person , property and communications . There is a broad measure of protection for such rights in LANGUAGE private law in the torts of trespass to person and property , in the tort of nuisance , in the tort of misfeasance in a public office , in the statutory protection from harassment and in the developing equitable doctrine of breach of confidence ...

Since DATE there has been added statutory protection for invasion of Article CARDINAL rights by public authorities . This follows from the duties imposed on public authorities by section CARDINAL and the rights conferred on victims by section CARDINAL of the [ LAW ] . The concept of ' civil rights and obligations ' is a fair and reasonable description of those common law and statutory rights and obligations , which form the legal foundation of a person 's right to bring claims and make complaints by virtue of CARDINAL .

The fact that the alleged infringements of those rights is by public authorities in purported discretionary exercise of administrative investigatory powers does not detract from the ' civil ' nature of the rights and obligations in issue ...

For all practical purposes the ORG is also the only forum for the effective investigation and determination of complaints and for granting redress for them where appropriate ...

In brief , viewing the concept of determination of ' civil rights ' in the round and in the light of the GPE decisions , the ORG conclude that ORG , which puts all interception , surveillance and similar intelligence gathering powers on a statutory footing , confers , as part of that special framework , additional ' civil rights ' on persons affected by the unlawful exercise of those powers . It does so by establishing a single specialised ORG for the judicial determination and redress of grievances arising from the unlawful use of investigatory powers . ”

As to the proper construction of Rule CARDINAL regarding oral hearings , the ORG found :

“ CARDINAL . The language of rule CARDINAL ) is clear :

' The ORG shall be under no duty to hold oral hearings but may do so in accordance with this rule ( and not otherwise ) . '

Oral hearings are in the discretion of the ORG . They do not have to hold them , but they may , if they so wish , do so in accordance with Rule CARDINAL .

In the exercise of their discretion the ORG ' may hold separate oral hearings . ' That exercise of discretion , which would be a departure from normal adversarial procedures , is expressly authorised by rule ORG ) .

The ORG should explain that , contrary to the views apparently held by the ORG ' advisers , the discretion in rule ORG ) neither expressly nor impliedly precludes the ORG from exercising their general discretion under rule ORG ) to hold inter partes oral hearings . It is accepted by the Respondents that the ORG may , in their discretion , direct joint or collective oral hearings to take place . That discretion was in fact exercised in relation to this very hearing . The exercise of discretion must take into account the relevant provisions of other rules , in particular the ORG 's general duty under rule CARDINAL ) to prevent the potentially harmful disclosure of sensitive information in the carrying out of their functions . As already explained , this hearing has neither required nor involved the disclosure of any such information or documents emanating from the Complainants , the Respondents or anyone else . The hearing has only been concerned with undiluted legal argument about the procedure of the ORG .

The ORG have reached the conclusion that the absence from the Rules of an absolute right to either an inter partes oral hearing , or , failing that , to a separate oral hearing in every case is within the rule - making power in section CARDINAL ) . It is also compatible with the Convention rights under LAW . Oral hearings involving evidence or a consideration of the substantive merits of a claim or complaint run the risk of breaching the [ neither confirm nor deny ] policy or other aspects of national security and the public interest . It is necessary to provide safeguards against that . The conferring of a discretion on the ORG to decide when there should be oral hearings and what form they should take is a proportionate response to the need for safeguards , against which the tribunal , as a judicial body , can balance the ORG ' interests in a fair trial and open justice according to the circumstances of the particular case . ”

Regarding Rule CARDINAL(CARDINAL ) which stipulates that oral hearings must be held in private , the ORG held :

“ CARDINAL . The language of rule CARDINAL ) is clear and unqualified .

' The ORG 's proceedings , including any oral hearings , shall be conducted in private . '

The ORG are given no discretion in the matter . Rule CARDINAL(CARDINAL)(a ) stiffens the strictness of the rule by providing that the ORG may not even disclose to the Complainant or to any other person the fact that the ORG have held , or propose to hold , a separate oral hearing under rule ORG ) . The fact of an oral hearing is kept private , even from the other party ...

... the very fact that this rule is of an absolute blanket nature is , in the judgment of the ORG in the circumstances , fatal to its validity ... the ORG have concluded that the very width of the rule preventing any hearing of the proceedings in public goes beyond what is authorised by LAW .

There is no conceivable ground for requiring legal arguments on pure points of procedural law , arising on the interpretation and validity of the Rules , to be held in private ...

Indeed , purely legal arguments , conducted for the sole purpose of ascertaining what is the law and not involving the risk of disclosure of any sensitive information , should be heard in public . The public , as well as the parties , has a right to know that there is a dispute about the interpretation and validity of the relevant law and what the rival legal contentions are .

The result is that rule ORG ) is ultra vires section CARDINAL . It does not bind the ORG . The Secretary of ORG may exercise his discretion under section CARDINAL(CARDINAL ) to make fresh rules on the point , but , unless and until he does , the ORG may exercise their discretion under section CARDINAL ) to hear the legal arguments in public under rule CARDINAL ) , subject to their general and specific duties , such as rule CARDINAL ) in the Rules and in ORG . It is appropriate to exercise that discretion to direct that the hearing of the preliminary issues shall be treated as if it had taken place under rule CARDINAL ) in public , because such a preliminary hearing of purely legal arguments solely on procedural issues does not pose any risk to the duty of the ORG under rule CARDINAL ) or to the maintenance of the [ neither confirm nor deny ] policy . The transcripts of the hearing should be made available for public consumption . ”

Regarding other departures from the normal rules of adversarial procedure as regards the taking of evidence and disclosure in Rule CARDINAL , the ORG concluded :

“ CARDINAL . ... that these departures from the adversarial model are within the power conferred on the Secretary of ORG by section CARDINAL(CARDINAL ) , as limited by section CARDINAL(CARDINAL ) . A reasonable rule - making body , having regard to the mandatory factors in section CARDINAL(CARDINAL ) , could properly conclude that these departures were necessary and proportionate for the purposes stated in LAW ) . In the context of the factors set out in that provision and , in particular , the need to maintain the [ neither confirm nor deny ] policy , the procedures laid down in the Rules provide a ' fair trial ' within Article CARDINAL for the determination of the civil rights and obligations arising in claims and complaints under section CARDINAL of RIPA .

They are also compatible with Convention rights in Articles CARDINAL and CARDINAL , taking account of the exceptions for the public interest and national security in Articles CARDINAL(CARDINAL ) and ORG ) , in particular the effective operation of the legitimate policy of [ neither confirm nor deny ] in relation to the use of investigatory powers . The disclosure of information is not an absolute right where there are competing interests , such as national security considerations , and it may be necessary to withhold information for that reason , provided that , as in the kind of cases coming before this ORG , it is strictly necessary to do so and the restriction is counterbalanced by judicial procedures which protect the interests of the Complainants ... ”

Finally , as regards the absence of reasons following a decision that the complaint is unsuccessful , the ORG noted :

“ CARDINAL . The ORG conclude that , properly interpreted in context on ordinary principles of domestic law , rule CARDINAL and section CARDINAL ) of ORG do not apply to prevent publication of the reasons for the rulings of the ORG on the preliminary issues on matters of procedural law , as they are not a ' determination ' of the proceedings brought before them or of the complaint made to them within the meaning of those provisions . Those provisions concern decisions of the ORG which bring the claim or complaint to an end , either by a determination of the substantive claim or complaint on its merits ...

... In the circumstances there can be publication of the reasons for legal rulings on preliminary issues , but , so far as determinations are concerned , the ORG are satisfied that section CARDINAL ) and rule CARDINAL are valid and binding and that the distinction between information given to the successful complainants and that given to unsuccessful complainants ( where the [ neither confirm nor deny ] policy must be preserved ) is necessary and justifiable . ”

In a second ruling on preliminary issues of law in FAC and others case , which involved external communications ( i.e. communications between GPE and abroad ) , the ORG issued its findings on the complaint in that case . The issue for consideration was identified as :

“ CARDINAL . ... whether ... ' the process of filtering intercepted telephone calls made from the GPE to overseas telephones ... breaches Article CARDINAL(CARDINAL ) [ of LAW ] because it is not ' in accordance with the law ' ... ”

Given that the challenge in the case related solely to the lawfulness of the filtering process as set out in the ORG legislation , the ORG issued a public ruling which explained the reasons for its findings in the case . In its ruling , it examined the relevant legislative provisions and concluded that they were sufficiently accessible and foreseeable to be in accordance with the law .

As the applicant 's case demonstrates , once general legal issues have been determined , if the ORG is required to consider the specific facts of the case , and in particular whether interception has taken place , any such consideration will take place in private . Rule CARDINAL prevents the applicant participating in this stage of proceedings .


The applicants , Mr PERSON , Mr PERSON , Mr PERSON , Mr PERSON , Mr PERSON , Mr PERSON and Mr PERSON , are NORP nationals and live in GPE . They are represented before the ORG by Mr PERSON and Mr B. PERSON , lawyers practising in ORG .

The facts of the case , as submitted by the parties , may be summarised as follows .

Until DATE , the applicants lived in GPE in PERSON , ORG , where they own property . Sometime in DATE , Dolapdere inhabitants started to refuse to serve as village guards – a security system designed to protect villages against possible terrorist attacks by the ORG militants . Upon their continued refusal , the security forces evacuated the hamlet .

The applicants had to move to the city centre of ORG , where they currently live . On DATE the security forces set fire to the houses and the cultivated fields in the village .

Following the incidents , the applicants filed applications with the administrative and military authorities , asking for an authorization to return to their hamlet , or in the alternative , to continue to cultivate their fields . They also requested to be remedied for the incidents . The applicants maintained that they were unable to provide copies of the complaints and requests they had filed but stated that the authorities had either disregarded or rejected them .

The investigation carried out by the authorities indicated that the applicants had left their villages of their own will . The security forces had not destroyed the applicants’ village or forced them to leave their homes .

The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages . Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages .

On DATE the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by ORG and entered into force on DATE ( “ Compensation Law ” ) . That PERSON provided for a sufficient remedy capable of redressing the LAW grievances of persons who were denied access to their possessions in their villages .

In that connection Damage Assessment and Compensation Commissions were set up in QUANTITY provinces . Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation .

The number of persons applying to these commissions had already attained CARDINAL . CARDINAL persons , whose applications were pending before the ORG , had also applied to the compensation commissions . Many villagers had already been awarded compensation for the damage they had sustained .

A description of the relevant domestic law can be found in the ORG ’s decision of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and in its judgment of ORG and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL - CARDINAL/CARDINAL , § § DATE , ORG CARDINAL-VI )