BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
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80. Pursuant to section 16(3), intercepted material falls within
section 16(2), notwithstanding that it is selected by reference to one of the
factors mentioned in that subsection, if it is certified by the Secretary of
State for the purposes of section 8(4) that the examination of material
selected according to factors referable to the individual in question is
necessary as mentioned in subsection 5(3) of the Act; and the material
relates only to communications sent during a period specified in the
certificate that is no longer than the permitted maximum.
81. The “permitted maximum” is defined in section 16(3A) as follows:
“(a) in the case of material the examination of which is certified for the purposes
of section 8(4) as necessary in the interests of national security, six months; and
(b) in any other case, three months.”
82. Pursuant to section 16(4), intercepted material also falls within
section 16(2), even if it is selected by reference to one of the factors
mentioned in that subsection, if the person to whom the warrant is addressed
believes, on reasonable grounds, that the circumstances are such that the
material would fall within that subsection; or the conditions set out in
section 16(5) are satisfied in relation to the selection of the material.
83. Section 16(5) provides:
“Those conditions are satisfied in relation to the selection of intercepted material if –
(a) it has appeared to the person to whom the warrant is addressed that there has
been such a relevant change of circumstances as, but for subsection (4)(b), would
prevent the intercepted material from falling within subsection (2);
(b) since it first so appeared, a written authorisation to read, look at or listen to the
material has been given by a senior official; and
(c) the selection is made before the end of the permitted period.”
84. Pursuant to section 16(5A), the “permitted period” means:
“(a) in the case of material the examination of which is certified for the purposes
of section 8(4) as necessary in the interests of national security, the period ending
with the end of the fifth working day after it first appeared as mentioned in
subsection (5)(a) to the person to whom the warrant is addressed; and
(b) in any other case, the period ending with the end of the first working day after
it first so appeared to that person.”
85. Section 16(6) explains that a “relevant change of circumstances”
means that it appears that either the individual in question has entered the
British Islands; or that a belief by the person to whom the warrant is
addressed in the individual’s presence outside the British Islands was in fact
mistaken.
86. Giving evidence to the Intelligence and Security Committee of
Parliament in October 2014, the Secretary of State for the Foreign and
Commonwealth explained that: