UK’s secret surveillance of overseas targets within Convention jurisdiction

03/10/23

The European Court of Human Rights (Fourth Section) on 12 September 2023 handed down a decision likely to have lasting significance on the extent of state jurisdiction of under Article 1 of the European Convention on Human Rights (“ECHR”). The Fourth Section held in Wieder and Guarnieri v United Kingdom (Application Nos 64371/16 and 64407/16) that, where the United Kingdom carries out secret surveillance effected from its territory by which it accesses information of individuals who are themselves not within its territory, the interference with Article 8 rights nonetheless occurs within its territory and thus within its jurisdiction under Article 1.

Under Article 1 ECHR, parties are required to “secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”. The Applicants were a US national living in Florida and Italian national living in Germany. Both had contended, in proceedings before the Investigatory Powers Tribunal (“IPT”) in the UK, inter alia that activity including the US “PRISM” and “Upstream” surveillance programmes may have resulted in information relating to their private lives and their correspondence being subject to secret surveillance by the UK, for example via activity of Government Communications Headquarters (commonly known as “GCHQ”), and that the interferences with this may have been unlawful under Articles 8 and/or 10 ECHR and thus under the Human Rights Act 1998.

The IPT dismissed their complaints based on the ECHR. It held that, under Article 1 ECHR, jurisdiction was primarily territorial, and the applicants were outside the UK so not within its jurisdiction on that basis. It further held that the established categories of extraterritorial jurisdiction (acts of diplomatic/consular agents, state agents exercising control or authority over an individual, and a state having effective control over an area) also did not apply. The UK sought to support this position before the Fourth Section.

The Fourth Section rejected this reasoning and conclusion. It accepted the Applicants’ arguments that, as regards the elements of the Article 8 rights to private life and correspondence in issue, an interference occurred where communications were intercepted, searched, examined and used, which (so far as the Court was aware) was in the UK: at [93]–[95]. In particular, it accepted the analogy to rights under Article 1 of the First Protocol (A1P1), where it was established by previous Strasbourg decisions that interferences with possessions occur where the possessions are located, rather than where the owner happens to be. The Fourth Section held at [94] that:

“… the interception of communications and the subsequent searching, examination and use of those communications interferes both with the privacy of the sender and/or recipient, and with the privacy of the communications themselves. Under the [Regulation of Investigatory Powers Act 2000 (“RIPA”)] section 8(4) regime the interference with the privacy of communications clearly takes place where those communications are intercepted, searched, examined and used and the resulting injury to the privacy rights of the sender and/or recipient will also take place there.”

The Fourth Section therefore found it unnecessary to consider the Applicants’ alternative argument an analogy should be drawn to the exception to territoriality where state agents have an individual under their control: at [83], [95].

On the merits, as the UK had conceded, in light of the Grand Chamber’s decision in Big Brother Watch v United Kingdom (2022) 74 EHRR 17 (see news item here), that the UK’s previous RIPA regime for bulk interception was incompatible with Article 8, it followed that there had been a violation of the Applicants’ Article 8 rights: at [103]–[104].

The Fourth Section dismissed a complaint under Article 10 ECHR on the basis that it did not raise any further matters: at [109]–[111].

The decision is likely to have significance both for analogous acts of secret surveillance but also more generally, for example, in relation to military activities carried out remotely from the territory of a Convention state.

The judgment is here.