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BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT SEPARATE OPINIONS
particular, taking into account the present legal and factual context, I do not
believe that the necessary safeguards in the circumstances of surveillance
based on the bulk interception of communications can be sufficient without
including an independent ex ante judicial control. The position according to
which prior judicial control of authorisations for secret surveillance of
communications was a desirable but not a necessary safeguard stems from
Klass and Others which, firstly, concerned a more limited surveillance
regime than the one now at issue and did not permit “exploratory
surveillance” at all, and which, secondly, was decided four decades ago
against the backdrop of factual circumstances that in many relevant respects
were different from those prevailing today. That position was later, in
Weber and Saravia, carried over to a surveillance regime which did have
more similarities with the RIPA section 8(4) regime but nevertheless
operated in conditions very different from those prevailing in the modern
digitalised societies. For the reasons outlined above, that position should, in
my view, no longer be maintained by the Court.
II. The intelligence-sharing regime
30. It is easy to agree with the principle that any arrangement under
which intelligence from intercepted communications is obtained via foreign
intelligence services, whether on the basis of requests to carry out such
interception or to convey its results, should not be allowed to entail a
circumvention of the safeguards which must be in place for any surveillance
by domestic authorities (see paragraphs 216, 423 and 447). Indeed, any
other approach would be implausible.
31. On this basis I consider, in sum, that the shortcomings referred to
above in the context of the section 8(4) regime also attach to the
intelligence-sharing regime (see paragraphs 109 and 428-29). I therefore
conclude that the safeguards have not been adequate and that there has been
a violation of Article 8 in respect of this regime also.