18
LIBERTY AND OTHERS v. THE UNITED KINGDOM JUDGMENT
2. The Government
47. For security reasons, the Government adopted a general policy of
neither confirming nor denying allegations made in respect of surveillance
activities. For the purposes of this application, however, they were content
for the Court to proceed on the hypothetical basis that the applicants could
rightly claim that communications sent to or from their offices were
intercepted at the Capenhurst ETF during the relevant period. Indeed, they
submitted that, in principle, any person who sent or received any form of
telecommunication outside the British Islands during the period in question
could have had such a communication physically intercepted under a section
3(2) warrant. However, the Government emphatically denied that any
interception was being conducted without the necessary warrants and it was
their position that, if interception of the applicants’ communications did
occur, it would have been lawfully sanctioned by an appropriate warrant
under section 3(2) of the 1985 Act.
48. The Government annexed to their first set of Observations, dated
28 November 2002, a statement by Mr Stephen Boys Smith, a senior Home
Office official, in which it was claimed:
“... Disclosure of the arrangements would reveal important information about the
methods of interception used. It is for this reason that the Government is unable to
disclose the full detail of the section 6 arrangements for section 3(2) warrants that
were in place during the relevant period. The methods to which the relevant
documents relate for the relevant period remain a central part of the methods which
continue to be used. Therefore, disclosure of the arrangements, the Government
assesses and I believe, would be contrary to the interests of national security. It would
enable individuals to adapt their conduct so as to minimise the effectiveness of any
interception methods which it might be thought necessary to apply to them.
Further, the manuals and instructions setting out the section 6 safeguards and
arrangements are in large part not in a form which would be illuminating or readily
comprehensible to anyone who had not also undergone the training I have referred to
above or had the benefit of detailed explanations. They are couched in technical
language and refer to specific techniques and processes which cannot be understood
simply from the face of the documents. They contain detailed instructions, precisely in
order to ensure that the section 6 arrangements and section 3(2) requirements were
fully understood by staff and were fully effective. Any explanations given by the
Government of those techniques and processes would compound the problem,
referred to above, of undermining the operational effectiveness of the system and
techniques used under the authority of warrants.”
The Government stressed, however, that the detailed arrangements were
the subject of independent review by the successive Commissioners, who
reported that they operated as robust safeguards for individuals’ rights (see
paragraphs 31-33 above).
49. The Government annexed to their Further Observations, dated
23 May 2003, a second statement by Mr Boys Smith, in response to
Mr Campbell’s statement (see paragraph 48 above), which provided more