8
LIBERTY AND OTHERS v. THE UNITED KINGDOM JUDGMENT
crime or to safeguard the State’s economic well-being, he was under a duty
to cancel it (section 4).
26. The annual report of the Commissioner for 1986 explained the
difference between warrants issued under section 3(1) and under section
3(2):
“There are a number of differences ... But the essential differences may be
summarised as follows:
(i) Section 3(2) warrants apply only to external telecommunications;
(ii) whereas section 3(1) warrants only apply to communications to or from one
particular person ... or one particular set of premises, Section 3(2) warrants are not so
confined; but
(iii) at the time of issuing a Section 3(2) warrant the Secretary of State is obliged to
issue a certificate describing the material which it is desired to intercept; and which he
regards as necessary to examine for any of the purposes set out in Section 2(2).
So the authority to intercept granted by the Secretary of State under Section 3(2) is
limited not so much by reference to the target, as it is under section 3(1), but by
reference to the material. It follows that in relation to Section 3(2) warrants, I have
had to consider first, whether the warrant applies to external communications only,
and, secondly, whether the certified material satisfies the Section 2(2) criteria. ...
There is a further important limitation on Section 3(2) warrants. I have said that the
authority granted by the Secretary of State is limited by reference to the material
specified in the certificate, rather than the targets named in the warrants. This
distinction is further underlined by Section 3(3) which provides that material specified
shall not include the address in the British Islands for the purpose of including
communications sent to or from that address, except in the case of counter-terrorism.
So if, for example in a case of subversion the Security Service wishes to intercept
external communications to or from a resident of the British Islands, he could not do
so under a Section 3(2) warrant by asking for communications sent to or from his
address to be included in the certified material. But it would be possible for the
Security Service to get indirectly, through a legitimate examination of certified
material, what it may not get directly. In such cases it has become the practice to
apply for a separate warrant under Section 3(1) known as an overlapping warrant, in
addition to the warrant under Section 3(2). There is nothing in the [1985 Act] which
requires this to be done. But it is obviously a sound practice, and wholly consistent
with the legislative intention underlying Section 3(3). Accordingly I would
recommend that where it is desired to intercept communications to or from an
individual residing in the British Islands, as a separate target, then in all cases other
than counter-terrorism there should be a separate warrant under Section 3(1), even
though the communications may already be covered by a warrant under Section 3(3).
The point is not without practical importance. For the definition of “relevant warrant”
and “relevant certificate” in Section 7(9) of the Act makes it clear that, while the
Tribunal has power to investigate warrants issued under section 3(1) and certificates
under section 3(2) where an address is specified in the certificate, it has no such power
to investigate Section 3(2) warrants, where an address is not so certified.”