MR JUSTICE BURTON
Approved Judgment
lawfully provided from abroad, it is sometimes appropriate for
the interception agencies to apply explicitly by analogy the
RIPA 2000 Part I principles of necessity and proportionality to
its receipt here even though RIPA 2000 Part I does not strictly
apply, because the interception did not take place in the UK by
an UK agency. This is responsibly done in a number of
appropriate circumstances by various of the agencies, and I am
asked to review the consequent arrangements, although this
may not be within my statutory remit.”
25.
All parties before us accept, and indeed assert, that, by reference to the
jurisprudence of the ECtHR, the interference under Article 8 is not to be judged on
exactly the same basis in relation to the receipt by the Respondents of product
which has already been intercepted by another party as it is when the Respondents
are responsible for such interception. The Claimants submit that the Respondents
fail by reference to any test. The Respondents submit that receipt by them of
information which may (or may not) be derived from intercept simply forms part of
lawful “Intelligence Sharing”, as discussed above, and that sufficient safeguards are
in place.
26.
Mr Farr describes this as follows in his witness statement:
“27. [The descriptions he gives of sharing of intelligence with
foreign states] do not just apply to intelligence obtained
through interception. These paragraphs apply to all forms of
intelligence, including intelligence (i) derived from covert
human intelligence sources (as they would be termed under
RIPA), (ii) derived from or constituting records of audio and/or
visual surveillance and (iii) obtained or derived from covert
property searches.
28. I am advised that a potential issue in these proceedings is
whether the sharing of intelligence in the form of (or that is
derived from) communications and communications data
between the UK and foreign governments should in some sense
be separately regulated.
29. From the point of view of the privacy interests of those
individuals who are subject to investigative measures, I do not
consider that a workable distinction can be drawn between
such intelligence and the other three forms of intelligence
referred to in paragraph 27 above. In particular, I do not
consider that intelligence in the form of (or that is derived
from) communications and communications data is in some
general sense more personal or private than those other forms
of intelligence. For instance, if an eavesdropping device is
covertly installed in a target’s home it may record
conversations between family members that are more intimate
and personal than those that might be recorded if the target’s
telephone were to be intercepted (and this example becomes
even clearer if, for instance, the telephone in question is only