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Investigatory Powers Tribunal rules on its own jurisdiction in relation to overt/covert surveillance

Published:

Re: Z3 v Secretary of State for the Home Department, The Security Service and others [2022] UKIP Trib 4

The Investigatory Powers Tribunal (Rt Hon Lord Boyd of Duncansby, Vice-President, Edis LJ and Charles Flint KC) handed down judgment on 2 November 2022 in relation to a preliminary issue on whether the Tribunal had jurisdiction to consider a complaint brought by Z3.

Z3 was a naturalised British citizen who was convicted of an offence under the Terrorism Act 2016, and subsequently a breach of a Terrorism Prevention and Investigation Measure (TPIM). On 14 August 2018 he was served with a notice of deprivation of nationality and a decision to deport him. He was detained in HMP Belmarsh. He challenged the decision to deprive him of nationality to the Special Immigration Appeal Commission (“SIAC”).  On 1 November he applied for bail.  The hearing before SIAC was set for 29 November 2018. The Home Office opposed the application and, through the Government Legal Department (GLD), instructed counsel to appear at the hearing.  In the course of preparation, the Home Office official dealing with the case became aware of certain information concerning the claimant’s attitude to remaining in the UK which she considered might be relevant to the Home Office case at the hearing. The information had been obtained from the monitoring of the claimant’s calls from prison.

The issue in the IPT case arose out of the subsequent provision to a GLD lawyer and counsel of material from these calls which arguably attracted legal professional privilege (LPP). On 22 February 2019 Z3 lodged a claim to the Tribunal alleging that the respondents had misused his legally privileged material by intercepting, disseminating and using privileged and sensitive material recording legal advice given to him by solicitors in the ongoing litigation before SIAC.

There are two elements to Z3’s claim. The first is in relation to the overt interception of prison telephone calls by the prison. The second is to the effect that during the course of covert surveillance on him legally privileged material was obtained and misused in the course of various court proceedings in which Z3 was a party.

The Tribunal concluded that they did not have jurisdiction in respect of the interception of telephone calls made by Z3 during his detention in HMP However, they concluded that they did have jurisdiction in respect of his claim arising out of his belief that having been the subject of covert surveillance legally privileged material was obtained by the Security Service which was then misused in the course of court proceedings to which the claimant was a party.

 

Jonathan Glasson KC acted as Counsel to the Tribunal in this case.