BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
367. Turning next to the question whether the law contained adequate
and effective safeguards and guarantees to meet the requirements of
“foreseeability” and “necessity in a democratic society”, the Court will
address in subsection (β) each of the eight requirements set out in
paragraph 361 above with respect to the interception of the contents of
electronic communications. In sub-section (γ) it will examine more
specifically the interception of related communications data.
(2) Interception of the contents of communications
‒ 1. The grounds on which bulk interception may be authorised
368. Under section 5(3) of RIPA and paragraph 6.11 of the IC Code (see
paragraphs 62 and 96 above), the Secretary of State could only issue a bulk
interception warrant if he or she was satisfied that it was necessary in the
interests of national security, for the purpose of preventing or detecting
serious crime, or for the purpose of safeguarding the economic well-being
of the United Kingdom so far as those interests were also relevant to the
interests of national security.
369. These grounds were subject to the following limitations. First of all,
the IC Commissioner had clarified that in practice “national security”
allowed surveillance of activities which threatened the safety or well-being
of the State and activities which were intended to undermine or overthrow
parliamentary democracy by political, industrial or violent means (see
Kennedy, cited above, § 333). Secondly, serious crime was defined in
section 81(2)(b) of RIPA as a crime for which the perpetrator (assuming he
or she was over the age of twenty-one and had no previous convictions)
could reasonably be expected to be sentenced to imprisonment for a term of
three years or more; or where the conduct involved the use of violence,
resulted in substantial financial gain or was conducted by a large number of
persons in pursuit of a common purpose (see paragraph 63 above). Thirdly,
section 17 of RIPA and paragraph 8.3 of the IC Code provided that as a
general rule neither the possibility of interception, nor intercepted material
itself, could play any part in legal proceedings (see paragraphs 83 and 96
above). Therefore, while interception could be used for the purposes of
preventing or detecting serious crime, intercept material could not be used
in the prosecution of a criminal offence. In addition, paragraph 6.8 of the IC
Code provided that the purpose of a section 8(4) warrant would “typically
reflect one or more of the intelligence priorities set by the National Security
Council” (see paragraphs 96 and 98 above).
370. In principle, the wider the grounds are, the greater the potential for
abuse. However, narrower and/or more tightly defined grounds would only
provide an effective guarantee against abuse if there were sufficient other
safeguards in place to ensure that bulk interception was only authorised for
a permitted ground and that it was necessary and proportionate for that
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