BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
for vagueness in legislation. As a consequence of the absence of a clear
definition, an individual could not be sure, even with the help of qualified
advice, on what exact grounds his or her communications were liable to be
intercepted and analysed by the intelligence services.
29. The purpose under (b) did not have the above-mentioned flaws of
the purposes under (a) and (c). Serious crime was defined as an offence 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 369 of the judgment). Such a definition covers a
very broad scope of behaviour, which raises serious doubts regarding the
proportionality of this ground. Furthermore, in a democratic society,
intelligence services should not have any competence in combating crime,
unless the criminal activities threaten national security6. The explanation of
the respondent Government, namely that information obtained by bulk
interception could not be used in the prosecution of a criminal offence, is in
our opinion unconvincing. It appears that on the basis of the information
thus obtained, law enforcement agencies could act, for example, by
proceeding to conduct investigative measures or even arrests, this in turn
producing evidence for the purpose of prosecution. It is likely that in a not
so distant future, by exploring this particular ground, crime investigation
might move from targeted surveillance to bulk interception of data.
V. CONCLUSION
30. There are rare occasions when the Court adjudicates on a case which
shapes the future of our societies. The present one is such an example. The
Grand Chamber has partly seized the opportunity and outlined a
comprehensive set of principles which are aimed at protecting human rights
and fundamental freedoms, notably those enshrined in Articles 8 and 10 of
the Convention. However, for the reasons explained in this separate opinion,
in performing the balancing exercise, the majority have failed to assign
proper weight to private life and correspondence, which in several respects
remain insufficiently protected in the face of interference by bulk
interception. One may hope that in future cases raising questions of concrete
interference with the rights of specific individuals, the Court will interpret
and further develop the principles in a way which will properly uphold
democratic society and the values it stands for.
6 See, e.g., Recommendation 1402 (1999) of the Parliamentary Assembly of the Council of
Europe on the control of internal security services in Council of Europe member states, in
particular Guideline A (ii). This Recommendation addresses activities of internal security
services, but we see it as perfectly applicable to foreign intelligence also.
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