WIEDER AND GUARNIERI v. THE UNITED KINGDOM JUDGMENT
59. Consequently, the principal issue in the present case is not the
Convention compliance of that regime, but rather the preliminary question of
admissibility of the individual applications. On this point, the Government
have raised two preliminary objections: the exhaustion of domestic remedies,
within the meaning of Article 35 § 1 of the Convention; and jurisdictional
competence for the purposes of Article 1 of the Convention.
2. The Government’s preliminary objections
(a) Exhaustion of domestic remedies
(i) The parties’ submissions
(α) The Government
60. The Government relied on R (On the application of Privacy
International) v. Investigatory Powers Tribunal and others, in which the
Supreme Court had held that a decision of the Investigatory Powers Tribunal
(“IPT”) could be judicially reviewed in the High Court for an error of law
([2019] UKSC 22) (see paragraph 29 above). The Government therefore
argued that the applicants had not exhausted domestic remedies, within the
meaning of Article 35 § 1 of the Convention, because they had not sought to
judicially review the decision of the IPT, even though its findings on
jurisdiction were a conclusion of law that was plainly capable of being
reviewed by the High Court under its supervisory judicial review jurisdiction.
61. The Government acknowledged that the Supreme Court judgment in
Privacy International was handed down in 2019, after the present
applications were lodged with the Court. However, the Supreme Court
judgment simply declared what the law had always been in relation to the
IPT. Consequently, the applicants could have challenged the IPT’s
conclusions in 2016, just as Privacy International had done. In this respect,
the Government pointed out that Privacy International’s judicial review
application (which had led to the 2019 judgment of the Supreme Court) had
been brought in 2016, and in those proceedings Privacy International had
been represented by the same solicitor who was representing the present
applicants.
(β) The applicants
62. The applicants, on the other hand, submitted that at the time of the IPT
decision in their case, there was no right of appeal and section 67(8) of RIPA
purported to exclude the jurisdiction of the High Court to hear a judicial
review application of a decision of the IPT. Shortly after the present
applications were lodged with the Court, it was held at first instance, and then
on appeal to the Court of Appeal, that this was indeed the effect of
section 67(8). This position only changed on 15 May 2019, when the
Supreme Court held that in at least some circumstances decisions of the IPT
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