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The Privacy Surgeon lodges plea with Attorney General to refer GCHQ interception to the UK police

18.5 blog by kind permission of Barritt & MayBy Simon Davies

The Privacy Surgeon today submitted a formal plea to the Attorney General of England & Wales, Dominic Grieve, requesting that he use his prerogative as chief law officer to refer Britain’s communications intelligence agency, GCHQ, for police investigation over claims that it violated criminal law.

The submission sets out in detail my concern that the spy agency routinely violated section 1 of the UK’s Regulation of Investigatory Powers Act, which establishes a criminal offence for unauthorised interception of communications.

Attorney General Dominic Grieve: some tough choices ahead over criminal complaints against GCHQ

Attorney General Dominic Grieve: some tough choices ahead over criminal complaints against GCHQ

This unusual request to the Attorney Geneal was made following recent public disclosures that GCHQ has for some years engaged in a programme of indiscriminate access and storage of webcam images of a substantial number – possibly millions – of Yahoo customers.

The programme – named “Optic Nerve” – was recently made public as a result of publication of a number of internal GCHQ documents made available by the whistleblower Edward Snowden.

It would appear that the required section 42 authorisation was not issued by – or sought from – the Secretary of State. If this situation is verified, GCHQ officials would be liable for prosecution.

The submission was made in consultation with legal experts.

A referral to the police by the Attorney General would not be a precedent. In 2009 the case of Binyam Mohamed, a former British Guantanamo detainee, was investigated by police after a request by Grieve’s predecessor, Baroness Scotland. While that matter centred on claims of torture conducted by an MI5 officer, the two cases are in some respects similar, in particular the national security aspects and the operational involvement of the United States.

As the submission explains, in normal events I would have brought this matter directly to the attention of police. Two conditions dissuaded me from this course of action. First, the Attorney General has special discretionary powers on issues concerning investigations relating to national security. Second, the police have historically failed to prosecute large entities over violations of interception law.

Any claim of unlawful conduct by a security agency must surely be investigated and resolved as a matter of urgency.

The submission continues:

This plea is made to you in your capacity as an independent guardian of the public interest and the rule of law. I strongly feel that in light of the extensive controversy in recent months over such matters, your intervention is necessary to maintain public trust in both the right to privacy and in the rule of law. The Snowden disclosures have triggered widespread concern over national security operations. This followed considerable alarm over a spectrum of phone hacking allegations that went to the heart of the integrity of media and the police. Any claim of unlawful conduct by a security agency must surely be investigated and resolved as a matter of urgency.

The submission outlines in some detail why alternative complaint mechanisms – including the police, the Information Commissioner, the Interception of Communications Commissioner and the Investigatory Powers Tribunal – are inadequate to deal with this matter.

The Attorney General is not required to respond to the plea, though total inaction by the chief law officer after being presented with evidence of a possible criminal offence might be considered inadvisable.