data to other parties; and (6) the circumstances in which recordings
may or must be erased or the tapes destroyed.”
57.
In R.E. v UK, the ECtHR was satisfied, with regard to the surveillance
provisions there referred to, so far as concerned Weber (1) and (2) at
paragraph 136 of its Judgment, and so far as duration is concerned gave
approval in paragraph 137. Duration of the s.5 warrant is limited by s.6, to
which no specific criticisms have been addressed.
58.
In Weber itself, a broad and untargeted warrant, similar to a warrant under
s.8(4) of RIPA - a far broader and less specified warrant than the s.5 warrant
which we are here considering - was found to comply with the Convention.
59.
We are satisfied in this case that a s.5 warrant which accords with the criteria
of specification which we have set out at paragraph 47 above complies with
Weber (1) to (3), namely in regard to the circumstances, the definition of the
categories of people/property and duration, and consequently with Articles 8
and 10 in that regard. We deal with Weber (4) to (6) below.
Issue 7: Bulk CNE
60.
Issue 7 relates to the absence of a similar certificate to that in s.16 of RIPA in
relation to CNE. It arises from the matters in (e) in the original paragraph 6 of
the List of Issues, set out in paragraph 9 above, which were the subject of
NCND by the Respondents. There are two specific complaints which are
made:
i)
That, unlike in the case of a s.8(4) warrant under RIPA, where
communications are intercepted in bulk and subsequently accessed for
examination, there is no provision, in the event of this occurring
pursuant to CNE, for ‘filtering’: i.e. as in s.16(1) and (3) of RIPA for
intercept to be read, looked at or listened to only by reference to a
certificate that the examination of material selected is necessary for one
of the statutory purposes.
S.16 is what was referred to in
Liberty/Privacy (No.1) (paragraph 103) as the provision which did the
‘heavy lifting’.
ii)
That there is no special protection, if information is obtained in bulk
through the use of CNE, for those persons known to be for the time
being in the British Islands, as in s.16(2)(3) and (5) of RIPA. Such a
scenario is in fact addressed in the E I Code at paragraph 7.4 (relating
to a s.7 warrant) which reads:
“7.4 If a member of SIS or GCHQ wishes to interfere
with equipment located overseas but the subject of
the operation is known to be in the British Islands,
consideration should be given as to whether a section
8(1) interception warrant or a section 16(3)
certification (in relation to one or more extant
section 8(4) warrants) under the 2000 Act should be
obtained in advance of commencing the operation