MR JUSTICE BURTON
Approved Judgment
pursuant to a s8( 4) warrant would be bound to be fact specific, and what
was being looked for would depend upon the subject matter of the warrant.
32.2 At the end of the day the Complainants' Counsel's submission is a
simple one. He is in no position, he submits, to guess at what should be
said, but he simply submits that something more should be said, by way of
indication as to selection criteria than is presently stated, and that the
selection should not be left simply to the discretion of officials.
33. The Respondents' response is unequivocal. They refer to
paragraph 22 of the statement mentioned above in paragraph
14:
" ... This process under section 8(4) permits selection and
examination of the selected material only to the extent that to
do so would be necessary in the interests of national
security, to prevent or detect serious crime or to safeguard
the economic well-being of the United Kingdom. In this
regard and generally, section 8(4) is to be read in
conjunction with section 15 of RIPA, which in subsection
(1)(b) specifically makes section 8(4) warrants subject to
arrangements for ensuring that the requirements of section
16 of RIPA are satisfied (namely "that intercepted material
is read, looked at or listened to by the persons to whom it
becomes available by virtue of the warrant to the extent only
that it has been certified as material the examination of
which is necessary as mentioned in section 5(3)(a), (b) or
(c))”. It is the duty of the Secretary of State to ensure that
such arrangements are in force that he considers necessary
for securing that the requirements of s16 are satisfied."
34. The selection criteria in relation to accessing a large
quantity of as yet unexamined material obtained pursuant to a
s8(4) warrant (as indeed in relation to material obtained in
relation to a s8(1) warrant) are those set out in s5(3). The
Complainants' Counsel complains that there is no "publicly
stated material indicating that a relevant person is satisfied
that the [accessing] of a particular individual's telephone call
is proportionate". But the Respondents submit that there is
indeed such publicly stated material, namely the provisions of
s6(l) of the Human Rights Act which requires a public authority
to act compatibly with Convention rights, and thus, it is
submitted, imposes a duty to act proportionately in applying to
the material the s5(3) criteria.
35. To that duty there is added the existence of seven
safeguards listed by the Respondents' Counsel, namely (I) the
criminal prohibition on unlawful interception (2) the
involvement of the Secretary of State (3) the guiding role of the
Joint Intelligence Committee ("JIC") (4) the Code of Practice
(5) the oversight by the Interception of Communication