MR JUSTICE BURTON
Approved Judgment
given in the above paragraph [his description of the growing
threat of terrorism, and the use by terrorist groups of
modern technology, requiring to be countered by
interception techniques and appropriate levels of secrecy to
protect those techniques] the Government is unable to
disclose the full detail of the arrangements for s8(4)
warrants that are in place under sections 15 and 16 of
[RIPA]. Disclosure of the specific arrangements, the
Government assesses, and I believe, would be contrary to the
interests of national security. In particular, it would enable
individuals to adapt their conduct so as to undermine the
operational effectiveness of any interception efforts which it
might be thought necessary to apply to them. It is axiomatic
that such instructions would be a very great utility to, for
instance, members of the intelligence agencies of countries
that are hostile to British interests.
27. In the light of the above, what I set out in this statement is
the fullest account of the safeguards and operating
procedures that the Government is able to provide without
undermining national security.
The Government has
experience of the loss of intelligence available to it and the
loss of effectiveness of its intelligence gathering machinery,
consequent upon revealing details of the methodologies
available to it’”
84.
In paragraph 15 of the judgment it was recited that two complaints, which have been
repeated before us, though not in any way in the forefront of the Claimants’
arguments, were put before the Tribunal in that case, namely that the search terms
were not specified in the Secretary of State’s certificates and that they were selected
without reference to the judiciary or ministers.
85.
Another complaint made before us, which again has not been in the forefront of
argument, is referred to in paragraphs 19ff of the judgment, namely the untargeted
nature of a s8(4) warrant; this is rejected in paragraphs 19 to 22 of the judgment.
86.
In paragraphs 29 to 31 of the judgment, the Tribunal addresses issues of
foreseeability, and reference was made to paragraph 67 of the judgment in Malone,
to which we have referred in paragraph 30 above. The judgment continued as
follows:
“30. The Respondents' Counsel placed considerable reliance
upon the decision of the Commission in Christie v United
Kingdom [1993] 78-ADR 119. This decision took express
account of, and referred to, Kruslin and Huvig (at 132). It was
considering the very legislation now before us (save that it
related to the predecessor statute, the Interception of
Communications Act 1985, the terms of s2(2) of which were
materially identical to s5(3) of RIPA). It was not a question of a
judicial order for evidence leading to its admissibility in court.
The issue related to authorised interception of telexes received