BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
(c) the selection is made before the end of the permitted period.”
90. Pursuant to section 16(5A), the “permitted period” meant:
“(a) in the case of material the examination of which is certified for the
purposes of section 8(4) as necessary in the interests of national security,
the period ending with the end of the fifth working day after it first
appeared as mentioned in subsection (5)(a) to the person to whom the
warrant is addressed; and
(b) in any other case, the period ending with the end of the first working day
after it first so appeared to that person.”
91. Section 16(6) explained that a “relevant change of circumstances”
meant that it appeared that either the individual in question had entered the
British Islands; or that a belief by the person to whom the warrant was
addressed in the individual’s presence outside the British Islands was in fact
mistaken.
92. Giving evidence to the ISC in October 2014, the Secretary of State
for Foreign and Commonwealth Affairs explained that:
“When an analyst selects communications that have been intercepted under the
authority of an 8(4) warrant for examination, it does not matter what form of
communication an individual uses, or whether his other communications are stored on
a dedicated mail server or in cloud storage physically located in the UK, the US or
anywhere else (and in practice the individual user of cloud services will not know
where it is stored). If he or she is known to be in the British Islands it is not
permissible to search for his or her communications by use of his or her name, e-mail
address or any other personal identifier.”
4. The Interception of Communications Code of Practice
93. Section 71 of RIPA provided for the adoption of codes of practice by
the Secretary of State in relation to the exercise and performance of his or
her powers and duties under the Act. Draft codes of practice had to be laid
before Parliament and were public documents. They could only enter into
force in accordance with an order of the Secretary of State. The Secretary of
State could only make such an order if a draft of the order had been laid
before Parliament and approved by a resolution of each House.
94. Under section 72(1) of RIPA, a person exercising or performing any
power or duty relating to interception of communications had to have regard
to the relevant provisions of a code of practice. The provisions of a code of
practice could, in appropriate circumstances, be taken into account by courts
and tribunals under section 72(4) of RIPA.
95. The IC Code was issued pursuant to section 71 of RIPA. The IC
Code in force at the relevant time was issued in 2016.
96. In so far as relevant, that IC Code provided:
“3.2. There are a limited number of persons who can make an application for an
interception warrant, or an application can be made on their behalf. These are:
The Director-General of the Security Service.
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