MR JUSTICE BURTON
Approved Judgment
case there is no suggestion other than that the surveillance practices assumed to
have taken place under s.702 of FISA and Executive Order 12333 were not illegal.
60.
We did not call upon the Respondents to respond to this additional submission, and
we do not accept it, for the reasons we have set out above.
THE S.8(4) ISSUE
61.
We must begin by setting out a little of the statutory structure contained in RIPA.
By s.1(1), interception of any communication in the course of its transmission by
means of a public telecommunication system is unlawful unless, relevantly to this
case, it takes place as provided for by s.1(5)(b) of the Act in accordance with a
warrant under s.5 (“an interception warrant”). By s.2(2) a person intercepts a
communication in the course of its transmission by means of a telecommunication
system if (materially) he so modifies or interferes with the system or its operation,
or so monitors transmissions made by means of the system as to make “some or all
of the contents of the communication available, while being transmitted, to a person
other than the sender or intended recipient of the communication”. By s.2(7) the
times while a communication is being transmitted by means of a telecommunication
system “shall be taken to include any time when the system by means of which the
communication is being, or has been, transmitted is used for storing it in a manner
that enables the intended recipient to collect it or otherwise to have access to it”.
62.
It is common ground that interception can simply comprise the obtaining and
recording of a communication (as it is being transmitted), so as to make it available
subsequently to be read, looked at or listened to by a person: no one in fact needs
actually to have read, looked at or listened to the communication for interception to
occur.
63.
S.5 of the Act provides in material part as follows:
“5 Interception with a warrant.
(1) Subject to the following provisions of this Chapter, the
Secretary of State may issue a warrant authorising or requiring
the person to whom it is addressed, by any such conduct as may
be described in the warrant, to secure any one or more of the
following—
(a) the interception in the course of their transmission by
means of a postal service or telecommunication system of the
communications described in the warrant;
...
...
(d) the disclosure, in such manner as may be so described, of
intercepted material obtained by any interception authorised
or required by the warrant, and of related communications
data.