BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
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warrant under section 8(1) of RIPA. The intelligence services should not be
permitted to obtain via a bulk warrant what they could obtain via a targeted
warrant.
344. According to paragraph 7.18 of the IC Code, periodic audits should
be carried out to ensure that the requirements set out in section 16 of RIPA
are being met and any breaches of safeguards should be notified to the
Interception of Communications Commissioner (see paragraph 90 above).
In his 2016 annual report, echoing comments also made in his 2014 and
2015 reports, the Commissioner observed that the process by which analysts
selected material for examination, which did not require pre-authorisation
by a more senior operational manager, relied mainly on the professional
judgment of analysts, their training and subsequent management oversight
(see paragraph 179 above).
345. On balance, the Court agrees that it would be preferable for the
selection of material by analysts to be subject at the very least to preauthorisation by a senior operational manager. However, given that analysts
are carefully trained and vetted, records are kept and those records are
subject to independent oversight and audit (see paragraph 7.15 and 7.18 of
the IC Code, at paragraph 90 above), the absence of pre-authorisation would
not, in and of itself, amount to a failure to provide adequate safeguards
against abuse.
346. Nevertheless, the Court must have regard to the operation of the
section 8(4) regime as a whole, and in particular the fact that the list from
which analysts are selecting material is itself generated by the application of
selectors and selection criteria which were not subject to any independent
oversight. In practice, therefore, the only independent oversight of the
process of filtering and selecting intercept data for examination is the post
factum audit by the Interception of Communications Commissioner and,
should an application be made to it, the IPT. In Kennedy the Court held that
the RIPA procedure for examining intercept material was sufficiently clear.
That finding, however, was expressly based on the fact that unlike the
regime examined in Liberty and Others, which concerned the indiscriminate
capturing of data, that case was concerned with an interception warrant for
one set of premises only; a fact which in and of itself limited the scope of
the authorities’ discretion to intercept and listen to private communications
(see Kennedy, cited above, § 162). In a bulk interception regime, where the
discretion to intercept is not significantly curtailed by the terms of the
warrant, the safeguards applicable at the filtering and selecting for
examination stage must necessarily be more robust.
347. Therefore, while there is no evidence to suggest that the
intelligence services are abusing their powers – on the contrary, the
Interception of Communications Commissioner observed that the selection
procedure was carefully and conscientiously undertaken by analysts (see
paragraph 179 above) –, the Court is not persuaded that the safeguards