MR JUSTICE BURTON
Approved Judgment
decided in a judicial forum. It is compatible with the
requirements of foreseeability that terms which are on their
face general and unlimited are explained by administrative or
executive statements and instructions, since it is the provision
of sufficiently precise guidance to enable individuals to
regulate their conduct, rather than the source of that guidance,
which is of relevance (cf ... Silver v UK [1983] 5 EHRR 347).
...
In light of the above, the Commission considers that the scope
and manner of exercise of the powers to intercept
communications and make use of the information obtained are
indicated with a requisite degree of certainty to satisfy the
minimum requirements referred to above.
The Commission thus concludes that any interference in the
present case was "in accordance with the law".
31. The Complainants' Counsel submits that Christie and the
two previous decisions referred to can be distinguished, since,
although the issue addressed related to the identical statutory
provision, the precise point now being taken was not
addressed, namely one directed towards the absence of
selection criteria. As will be seen however, it is the
Respondents' submission that s5(3) supplies the answer to the
Complainants' new submission also, such that, if that be right,
the submission is both not new and answered by Christie.
32. The nub of the Complainants' contention is that this is a
case which falls within Silver, because there is no answer
provided by the statute, and no other guidelines, published or
available, which supply an answer to the requirement of
accessibility or foreseeability:
32.1 Although the Complainants' expert referred to a case presented to the
Constitutional Court in the Federal Republic of Germany, [this must be a
reference to Weber, which was not yet before the ECtHR] in which there
was reference made to a list of search terms which could or might be used
as a filtering system prior to accessing material (although, as the
Respondents' Counsel points out, he does not himself appear actually to say
that the German search terms were ever published, as opposed to an
account being given to the German Constitutional Court), the
Complainants' Counsel does not suggest that, in order to comply with the in
accordance with law doctrine there would have to be publication in the
United Kingdom of a list of search terms. Such a course would in our
judgment be both risky and pointless; risky because it would or might,
contrary to the principle enunciated in paragraph 67 of Malone, enable
those intending to participate in secret communications to avoid the use of
words which would be known to appear in the search list; and pointless
both for that reason and because any accessing of information intercepted