2013 Annual Report of the Interception of Communications Commissioner
“The provisions, in this case the right to intercept and access material covered by a
s8(4) warrant, and the criteria by reference to which it is exercised, are in our judgment
sufficiently accessible and foreseeable to be in accordance with the law. The parameters
in which the discretion to conduct interception is carried on, by reference to s5(3) and
subject to the safeguards referred to, are plain from the face of the statute. In this
difficult and perilous area of national security, taking into account both the necessary
narrow approach to Article 8(2) and the fact that the burden is placed on the Respondent,
we are satisfied that the balance is properly struck”.
This ruling is, so far as it goes, in the nature of binding authority, at least so long as the
Tribunal does not depart from it or modulate it. I say “so far as it goes”, because on a
narrow view the Tribunal only decided one issue. It might be possible for a different legal
challenge to be advanced, although, as I have indicated, other issues were advanced in
this case but abandoned. The general tenor of the Rulings is to endorse the structural
integrity in law of the section 8(4) procedure including the principle of a filtering process
to reduce and make individual selections from generalised interception material.
In the course of the Ruling, the Tribunal considered and took account of the following:
the relevant provisions of Article 8 of the Human Rights Convention; sections 5, 8(1), 8(4),
8(5), 15(1),(2) and (3) and 16 of RIPA 2000; and paragraphs 4.2, 4.8 and 5.2 of the Code
of Practice;
no challenge was made to the lawfulness of the procedures under a section 8(1) warrant
(paragraph 10);
no challenge was made to the lawfulness of a section 8(4) warrant itself nor to the
interception of material pursuant to such warrant (paragraph 10);
the Tribunal’s own view that there is no difference in the access provisions for section 8(1)
and section 8(4) warrants (paragraphs 20.3 and 22);
parts of a witness statement from a Director General at the Home Office referring to public
authority manuals setting out comprehensive instructions for the specific application
of section 15 and 16 safeguards (paragraph 14); and the process under section 8(4)
permitting the selection and examination of selected material within the statutory limits
and safeguards (paragraph 33).
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