BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
above), and it was necessary and proportionate for the intercepting agency
to obtain those communications. For these purposes, a relevant RIPA
interception warrant meant either a section 8(1) warrant in relation to the
subject at issue; a section 8(4) warrant and an accompanying certificate
which included one or more “descriptions of intercepted material” covering
the subject’s communications; or, where the subject was known to be within
the British Islands, a section 8(4) warrant and an accompanying certificate
which included one or more “descriptions of intercepted material” covering
his or her communications, together with an appropriate section 16(3)
modification.
503. Where exceptional circumstances existed, a request for
communications could be made in the absence of a relevant RIPA
interception warrant only if it did not amount to a deliberate circumvention
of RIPA or otherwise frustrate its objectives (for example, because it was
not technically feasible to obtain the communications via RIPA
interception), and it was necessary and proportionate for the intercepting
agency to obtain those communications. In such a case the request had to be
considered and decided on by the Secretary of State personally, and,
pursuant to the revised IC Code, notified to the IC Commissioner.
According to information disclosed during the Liberty proceedings, and
confirmed in the Government’s submissions before both the Chamber and
Grand Chamber, no request for intercept material had ever been made in the
absence of an existing RIPA warrant (see paragraph 42 above).
504. In light of the foregoing, the Court considers that domestic law set
down clear legal rules giving citizens an adequate indication of the
circumstances in which and the conditions on which the authorities could
request intercept material from a foreign State.
505. Where either a relevant section 8(1) or a section 8(4) warrant was
already in place, that warrant would have been authorised by the Secretary
of State. More specifically, it would appear from paragraph 12.5 of the
IC Code, read together with the accompanying footnote, that where a
request was based on an existing warrant that request would be made to,
from or about specific selectors (that is, relating to a specific individual or
individuals) and the Secretary of State would already have approved the
request for the communications of those individuals. While, in exceptional
circumstances, a request could be made in the absence of a relevant warrant,
the Secretary of State personally had to approve the request and, if based on
specific selectors, he or she personally had to consider and approve the
examination of those communications by reference to such factors (see
paragraph 116 above).
506. As the domestic legislation followed, with respect to such requests
for intelligence sharing, the same approach as in bulk interception, and as
national law explicitly provided that there should be no circumvention, there
is no need for the Court to look separately at the authorisation procedure.
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