BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
applicable to the receipt, by a Contracting State, of solicited intercept
material from a foreign intelligence service. If, as the Government contend,
States do not always know whether material received from foreign
intelligence services is the product of interception, then the Court considers
that the same standards should apply to all material received from foreign
intelligence services that could be the product of intercept.
499. Finally, the Court considers that any regime permitting the
intelligence services to request either interception or intercept material from
non-Contracting States, or to directly access such material, should be
subject to independent supervision, and there should also be the possibility
for independent ex post facto review.
(ii) Application of that test to the case at hand
500. The British-US Communication Intelligence Agreement of 5 March
1946 specifically permitted the exchange of material between the United
States and the United Kingdom (see paragraph 103 above). However, details
of the intelligence services’ internal (or “below the waterline”)
arrangements were only disclosed during the Liberty proceedings (see
paragraphs 33-36 above). This new information was later incorporated into
Chapter 12 of the IC Code (see paragraph 116 above) which, as already
noted, was a public document, subject to the approval of both Houses of
Parliament, and which had to be taken into account both by those exercising
interception duties and by courts and tribunals (see paragraph 93-94 above).
The Court has accepted that the provisions of the IC Code could be taken
into consideration in assessing the foreseeability of the RIPA regime (see
Kennedy, cited above, § 157 and paragraph 366 above) and the same must
necessarily be true for the intelligence sharing regime.
501. Accordingly, the Court considers that the regime for requesting and
receiving intelligence from non-Contracting States had a clear basis in
domestic law and, following the amendment to the IC Code, that law was
adequately accessible. As it undoubtedly pursued the legitimate aims of
protecting national security, preventing disorder and crime and protecting
the rights and freedoms of others, the Court will now – in line with its usual
methodology (see paragraph 334 above) – assess, jointly, the foreseeability
and necessity of the intelligence sharing regime.
502. Chapter 12 of the IC Code (see paragraph 116 above) follows the
same approach as the one adopted by domestic legislation in respect of bulk
interception. According to Chapter 12 the intelligence services could only
make a request to a foreign government for unanalysed intercepted
communications and/or associated communications data if a relevant
interception warrant under RIPA had already been issued by the Secretary
of State, the assistance of the foreign government was necessary to obtain
the particular communications because they could not be obtained under the
existing warrant (see paragraph 12.2 of the IC Code at paragraph 116
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