The Queen on the application of Privacy International v. Investigatory Powers Tribunal (UK General Hacking Warrants)
Privacy International led landmark litigation on judicial review principles and their applicability to the Investigatory Powers Tribunal
Case name: R (on the application of Privacy International) v Investigatory Powers Tribunal and others
Court: UK Supreme Court / Court of Appeal / High Court
Case No. UKSC 2018/0004 (Supreme Court) / C1/2017/0470/A (Court of Appeal) / CO/2368/2016 (High Court)
In May 2016, Privacy International filed a claim for judicial review in the UK High Court, challenging a decision by the Investigatory Powers Tribunal (IPT) sanctioning the UK Government's use of general warrants to hack inside and outside the UK. A judicial review is a type of collateral challenge to the lawfulness of a decision by a public body.
Privacy International originally brought a legal complaint to the IPT in May 2014 challenging GCHQ hacking inside and outside of the UK. Seven internet and communications service providers from around the world submitted a similar complaint and the IPT joined the cases.
In February 2016, the IPT held that GCHQ hacking is lawful under UK law and the European Convention on Human Rights. The IPT further held that GCHQ may hack inside and outside of the UK using “thematic warrants.” Thematic warrants are general warrants covering an entire class of property, persons or conduct, such as “all mobile phones in London.”
We challenged the IPT’s decision by way of judicial review before the High Court. We argued that thematic warrants undermined 250 years of English common law, which is clear that a warrant must target an identified individual or individuals. Parliament is presumed not to have overridden such a profound and fundamental right unless it clearly and expressly states that general warrants are now permissible, which it had not. We also argued that thematic warrants fail to comply with Article 8 of the European Convention on Human Rights, which protects the right to privacy.
In response, the Government argued that decisions of the IPT were not amenable to judicial review. In February 2017, the High Court found in favour of the Government, representing the first finding by a UK court it lacked jurisdiction to review the decisions of a tribunal with limited jurisdiction like the IPT. In November 2017, the Court of Appeal upheld the decision of the High Court.
In March 2018, the Supreme Court granted Privacy International permission to appeal.
In May 2019, Privacy International won our appeal to the UK Supreme Court. In overturning the Court of Appeal’s ruling, the Supreme Court held that the IPT was subject to judicial review.
Following the Supreme Court ruling, Privacy International resumed its challenge at the High Court to the IPT’s decision regarding the UK Government’s use of general warrants to interfere with property, including by hacking.
In January 2021, Privacy International won before the High Court. In its ruling, the High Court relied on principles established over 250 years of jurisprudence, noting the common law’s historical aversion to general warrants. By their very nature, general warrants leave matters of judgment and discretion to the person executing the warrant rather than the person legally responsible for issuing it. The Court found that the breadth of discretion implicitly granted to agents executing a warrant so broad in nature was inconsistent with the legality principle. This principle stipulates that the courts, when interpreting statutory provisions, will presume that Parliament did not intend to legislate in a manner which overrides fundamental common law rights in the absence of unambiguous language to this effect. The Court found that the relevant legislation was ambiguous, and therefore could not be read as intending to override rights.