BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
bearers would not have made domestic law any more foreseeable as to its
effects. The Court would therefore accept that the circumstances in which
an individual’s communications could be intercepted under the section 8(4)
regime were sufficiently “foreseeable” for the purposes of Article 8 of the
Convention.
‒ 3. The procedure to be followed for granting authorisation
377. An application for a section 8(4) warrant was made to the Secretary
of State, who alone had the power to issue such a warrant. Prior to
submission, each application was subject to a review within the agency
making it. This involved scrutiny by more than one official, who had to
consider whether the application was made for a purpose falling within
section 5(3) of RIPA and whether the proposed interception satisfied the
Convention standards of necessity and proportionality (see paragraph 6.9 of
the IC Code, at paragraph 96 above). This additional level of internal
scrutiny was no doubt valuable, but it remained the case that at the relevant
time bulk interception conducted under the section 8(4) regime was
authorised by the Secretary of State and not by a body independent of the
executive. Consequently, the section 8(4) regime lacked one of the
fundamental safeguards; namely, that bulk interception should be subject to
independent authorisation at the outset (see paragraph 350 above).
378. As for the level of scrutiny provided by the Secretary of State,
paragraph 6.10 of the IC Code set out in detail the information which had to
be included in the application (see paragraph 96 above). This included a
description of the communications to be intercepted, details of the
communications service provider(s) and an assessment of the feasibility of
the operation, where relevant; a description of the conduct to be authorised;
the certificate that would regulate examination of intercept material (see
paragraphs 378 and 379 below); an explanation of why the interception was
considered necessary for one or more of the section 5(3) purposes; a
consideration of why the conduct was proportionate to what was sought to
be achieved; an assurance that intercept material would be read, looked at or
listened to only so far as it was certified and met the conditions of
sections 16(2) to 16(6) of RIPA; and an assurance that intercept material
would be handled in accordance with the section 15 and section 16
safeguards.
379. The Secretary of State was therefore informed of the purpose of the
operation (which had to be one of the section 5(3) purposes) and, before
issuing a warrant, had to be satisfied that it was necessary for that purpose,
and that it was proportionate to what it sought to achieve (see
paragraphs 6.11 and 6.13 of the IC Code at paragraph 96 above). In
assessing proportionality the Secretary of State had to consider whether the
warrant was excessive in the overall circumstances of the case and whether
the information sought could reasonably have been obtained by less
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