BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
view, the independence of judicial-like bodies is not a given. In addition, if
ordinary courts are competent to authorise, supervise and review the
interception of communications in highly complex criminal proceedings,
such as investigations into organised crime and terrorism, I do not
understand why they should not be competent to perform the exact same
function regarding the operation of a bulk interception process. Thus,
neither the independence nor the competence of ordinary courts should be
called into question for the purposes of building a Convention-compliant
architecture of safeguards in a bulk interception regime. A State which
believes its serving judiciary to be unfit to perform these functions has a
serious problem with the rule of law.
20. To be sure, judicial intervention should not be a panacea87. It is
obvious that judicial oversight of the entire process would be meaningless if
the categories of offences and activities and intercept subjects being
monitored were not set out in the domestic law with the necessary degree of
clarity and precision. Consequently, judicial control must encompass the
choice of the specific bearers and strong selectors. By specific I mean the
individual bearers and strong selectors, not “sorts” or “categories” of
bearers or selectors, which would be a blank cheque for the intercepting
authority to pick up whatever it likes.
21. In the case of a double-lock system, whereby the judge considers
warrants previously decided by a politician or an administrative official,
judicial oversight must not be limited to the possibility of overruling the
administrative decision when the judge deems that the politician or the
administrative official acted unreasonably. This would not be truly judicial
authorisation since the Convention-required necessity and proportionality
tests are more demanding than the mere reasonableness test.
22. As I mentioned in Szábo and Vissy, the Convention does not allow
for “data fishing”, or “exploratory” expeditions, neither in the form of
non-targeted surveillance based on non-specific selectors, nor in the form of
surveillance based on strong selectors aimed at communications about the
targeted intercept subject88. Nor is it admissible to broaden the net of
intercept subjects through the deployment of fuzzier search terms. I would
recall the fundamental reason why I have reached this conclusion.
Admitting non-targeted bulk interception involves a fundamental change in
how we view crime prevention and investigation and intelligence gathering
in Europe, from targeting a suspect who can be identified to treating
The fact that judicial authorisation might not in itself be a sufficient safeguard against
abuse does not support the conclusion that it is not a necessary one. It should be noted that
ex ante judicial authorisation was introduced by IPA, but this is not the place to discuss
ex professo the judicial review standard introduced by IPA, because the 2016 Act is not
before the Court.
88 See all the international authorities cited in my opinion appended to Szábo and Vissy,
cited above.
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