interception, and the requirement for robust safeguards, are all the more
pressing.
239.
How,
then,
should
the
Court
approach
access
to
intercepted
communications when the interception itself was undertaken by another
state? One element of the Government’s argument can be dealt with
easily. The Government argues that it is not possible to have a legal
regime that governs intercept material obtained from a foreign state, as
distinct from other intelligence that is then shared with the UK
Intelligence Services (see Observations, § 3.34). It relies on the evidence of
Mr Farr who asserts that no “workable distinction” can be drawn between
material intercepted by another state, and, for example, material “derived
from covert property searches” carried out by a foreign intelligence service
and shared with the UK (Farr witness statement para 29).132
240.
That submission is impossible to reconcile with the Government’s own
policies. In its recently revised Code of Practice, specific provision is made
for
“Rules
for
requesting
and
handling
unanalysed
intercepted
communications from a foreign government”.133 It is clear that the
Government itself considers it possible to formulate “Rules” that apply
specifically to obtaining “intercepted communications” from a foreign
government and has no difficulty distinguishing such material from other
material the UK Intelligence Services receive. Whether or not that Code is
sufficient to meet the in accordance with law requirement of Articles 8 and
10 is disputed by the parties, but it is clear that the Respondent can and
does formulate rules which apply specifically to intercepted material.
241.
Turning to the jurisprudence on interception, the Court has yet to consider
how communications and communications data initially intercepted by a
State and then shared with a signatory State to the Convention, should be
132
133
Farr Witness Statement, para 29.
Jan. 2016 Code of Practice, Ch. 12.
93