MR JUSTICE BURTON
Approved Judgment
Again, of the Four Questions before us, the first, second and fourth were not asked
of the Court: the third plainly was, albeit in the context of a s.8(1) warrant.
92.
Before turning to consider the questions before us, we first further address the
Commissioner’s Report. Based upon the investigations he carried out, he reached
conclusions as to the operation of s.8(1) and s.8(4) and the warrants thereunder, and
the Respondents’ retention, storage and destruction policies and procedures,
including whether there is an indiscriminate or excessive retention of intercept
(particularly in paragraphs 3.55-56 and 6.5 and 6.6), and (in paragraphs 6.6.8-9) he
expresses his own caveats. Leaving aside his factual findings, his Report illustrates
the scope and depth of his oversight duties and activities. It also discloses, by its
very publication, considerable information into the public domain so far as
compatible with the needs of national security. The role of the Commissioner, and
his clearly independent and fully implemented powers of oversight and supervision,
were addressed in detail with approval by the ECtHR (notwithstanding what was
said in paragraph 67 of Liberty) in Kennedy, at paragraphs 57 to 74, 166 and 168.
We make clear, however, that we reach our own conclusions, not least in the
circumstances set out in paragraphs 45 and 46 above.
93.
We turn now to the first question which we have set out in paragraph 80 above,
relating to external/internal communications. As is clear from RIPA, s.8(1), the
targeted warrant is to be directed to one person or to a single set of premises:
presumably that is likely to be in the UK, but it does not need to be. The s.8(4)
warrant is not so targeted and not so limited, but can extend to substantial quantities
of communications, not just as this Tribunal discussed in the British Irish Rights
Watch case, but contained in ‘bearers’ carrying communications to many countries.
By s.8(5), set out above, the communications that are permitted to be intercepted are
(a) external communications and (b) by virtue of s.5(6) and s.8(5)(b) all related
communications data and any other communications (i.e. internal communications)
which are necessarily intercepted in order to do what is authorised by the warrant.
As to this, the inevitable intermingling of external and internal communications was
apparent in Lord Bassam’s statement in Parliament (paragraph 68 above) and is
addressed in paragraph 5.1 of the Code (paragraph 69 above).
94.
The following is common ground between the parties, as Mr Ryder, who bore the
brunt of these submissions, made clear:
i)
It is impossible to differentiate at the ‘interception’ stage between external and
internal communications, which will all be carried within the same ‘bearer’.
ii)
It is impossible to know at the time of interception, i.e. in the course of
transmission, what is external and what is internal, and such has always been
the case:
a)
The definition of interception in s.2(2) of RIPA refers (as set out
above) to transmission “to a person other than the sender or intended
[our underlining] recipient of the communication” i.e. it is (or may be)
intercepted before receipt.
b)
Again as set out above, s.2(7) provides that transmission of a
communication is to include the time when the communication has