MR JUSTICE BURTON
Approved Judgment
33.
The Respondents accept that the obtaining of intercept material within the first two
categories from NSA via Prism triggers an interference with Article 8. However Mr
Eadie’s submission is that there is no authority in Strasbourg to date to suggest or to
support the proposition that the “Weber requirements” would apply to the
obtaining, handling, use, disclosure or destruction of foreign intelligence material of
such kind. This is a reference to the decision of the ECtHR referred to in paragraph
4(ii) above, where the Court, in a case dealing with the recording of
telecommunications in the course of ‘strategic monitoring’ (not greatly different to
interception pursuant to a s.8(4) warrant), summarised the principles underlying
Article 8(2), not for the first time, at paragraph 84, as follows:
“The Court reiterates that the expression “in accordance with
the law” within the meaning of Article 8(2) requires, firstly,
that the impugned measure should have some basis in domestic
law; it also refers to the quality of the law in question,
requiring that it should be accessible to the person concerned,
who must, moreover be able to foresee its consequences for
him, and compatible with the rule of law.”
The Court then proceeded to set out in relation to an interception case the following
propositions, which have become known as the Weber requirements: we have
numbered these from 1-6 for convenience.
“95. In its case-law on secret measures of surveillance, the
Court has developed the following minimum safeguards that
should be set out in statute law in order to avoid abuses of
power: (1) the nature of the offences which may give rise to an
interception order; (2) a definition of the categories of people
liable to have their telephones tapped; (3) a limit on the
duration of telephone tapping; (4) the procedure to be followed
for examining, using and storing the data obtained; (5) the
precautions to be taken when communicating the data to other
parties; and (6) the circumstances in which recordings may or
must be erased or the tapes destroyed.”
34.
There is no material disagreement between the parties that this is not a Weber case
(as set out in paragraph 25 above), in particular because, in the assumed scenario
under consideration, there is no interception by the Respondents which would, but
for the protection of RIPA (if complied with), be unlawful. Mr Eadie refers to
Uzun v Germany [2011] 53 EHRR 24, which was a case relating to surveillance
using GPS, where the ECtHR expressly said (at para 66) that the Weber
requirements were not applicable because:
“While the Court is not barred from gaining inspiration from
these principles, it finds that these rather strict standards, set
up and applied in the specific context of surveillance of
telecommunications . . . are not applicable as such to cases
such as the present one, concerning surveillance via GPS of
movements in public places, and thus a measure which must be
considered to interfere less with the private life of the person
concerned than the interception of his or her telephone