The Queen on the application of Privacy International v. Investigatory Powers Tribunal (UK General Hacking Warrants)
Case No. UKSC 2018/0004 (Supreme Court) / C1/2017/0470/A (Court of Appeal) / CO/2368/2016 (High Court)
UK Supreme Court / Court of Appeal / 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."
Our judicial review application challenges the IPT's decision with respect to general warrants. We argue that thematic warrants undermine 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 argue that thematic warrants fail to comply with Article 8 of the European Convention on Human Rights, which protects the right to privacy.
Before the High Court, the Government argued that decisions of the IPT are not amenable to judicial review. In February 2017, the High Court found in favour of the Government, representing the first time that the UK courts have found that they lack jurisdiction to review the legality of 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.