MR JUSTICE BURTON
Approved Judgment
conversations . . . It will therefore apply the more general
principles on adequate protection against arbitrary
interference with Article 8 rights as summarised above.”
Mr Eadie submitted (as referred to in paragraph 25 above) that this is simply a
species of intelligence gathering, not to be equated with the position where the UK
itself intercepts. Mr Ryder contended that this ignored the fact that the product of
the intercept would then be stored, used and analysed in the same way as intercepted
material obtained by the Respondent’s themselves – although of course that would
also apply to the information within the Claimants’ third category referred to in
paragraph 28(iii) above.
35.
Both the Respondents and the Claimants accept that Strasbourg jurisprudence places
special emphasis upon interception. Essentially Mr Squires’ submission was that
there are “different levels of “prescribed by law”, and that, as he put it, “we don’t
necessarily say exactly the same [level], but one [has] to have something at least
approaching the “prescribed by law” standards, set out in Weber etc, when it is
communications intercepted by the US and then accessed here, received here,
analysed here.”
36.
We agree that the Prism Issue engages Article 8 and that even at a ‘lower level’ than
Weber there will need to be a compliance with requirements by the Respondents,
particularly in relation to storage, sharing and retention/destruction. We have set
out the statutory framework which imposes obligations upon the Respondents in
relation to its obtaining information from the NSA, whether derived from intercept
or otherwise, but more is required by the jurisprudence of the ECtHR, albeit at a
‘lesser level’, as the Claimants put it.
37.
The relevant principles appear to us to be that in order for interference with Article
8 to be in accordance with the law:
i)
there must not be an unfettered discretion for executive action. There must be
controls on the arbitrariness of that action.
ii)
the nature of the rules must be clear and the ambit of them must be in the
public domain so far as possible, an “adequate indication” given (Malone v
UK [1985] 7 EHRR 14 at paragraph 67), so that the existence of interference
with privacy may in general terms be foreseeable.
A clear reiteration of these principles is contained in the judgment of the Court in
Bykov v Russia 4378/02 21 January 2009:
“76. The Court reiterates that the phrase “in accordance with
the law” not only requires compliance with domestic law but
also relates to the quality of that law, requiring it to be
compatible with the rule of law. In the context of covert
surveillance by public authorities, in this instance the police,
domestic law must provide protection against arbitrary
interference with an individual's right under Article 8.
Moreover, the law must be sufficiently clear in its terms to give
individuals an adequate indication as to the circumstances in