BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
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information, document or other article relating to security or intelligence
which is in his possession by virtue of his position as a member of those
services.
(g) The Human Rights Act 1998 (“HRA”)
108. Pursuant to section 6 of the HRA, it is unlawful for a public
authority to act in a way which is incompatible with a Convention right.
3. The Interception of Communications Code of Practice
109. Following the Liberty proceedings, the information contained in the
9 October disclosure was incorporated into the IC Code of Practice:
“12. RULES FOR REQUESTING AND HANDLING UNANALYSED
INTERCEPTED COMMUNICATIONS FROM A FOREIGN GOVERNMENT
Application of this chapter
12.1. This chapter applies to those intercepting agencies that undertake interception
under a section 8(4) warrant.
Requests for assistance other than in accordance with an international mutual
assistance agreement
12.2. A request may only be made by an intercepting agency to the government of a
country or territory outside the UK for unanalysed intercepted communications (and
associated communications data), otherwise than in accordance with an international
mutual assistance agreement, if either:
A relevant interception warrant under RIPA has already been issued by the
Secretary of State, the assistance of the foreign government is necessary to
obtain the particular communications because they cannot be obtained
under the relevant RIPA interception warrant and it is necessary and
proportionate for the intercepting agency to obtain those communications;
or
Making the request for the particular communications in the absence of a
relevant RIPA interception warrant does not amount to a deliberate
circumvention of RIPA or otherwise frustrate the objectives of RIPA (for
example, because it is not technically feasible to obtain the
communications via RIPA interception), and it is necessary and
proportionate for the intercepting agency to obtain those communications.
12.3. A request falling within the second bullet of paragraph 12.2 may only be
made in exceptional circumstances and must be considered and decided upon by the
Secretary of State personally.
12.4. For these purposes, a “relevant RIPA interception warrant” means one of the
following: (i) a section 8(1) warrant in relation to the subject at issue; (ii) a
section 8(4) warrant and an accompanying certificate which includes one or more
“descriptions of intercepted material” (within the meaning of section 8(4)(b) of RIPA)
covering the subject’s communications, together with an appropriate section 16(3)
modification (for individuals known to be within the British Islands); or (iii) a
section 8(4) warrant and an accompanying certificate which includes one or more