MR JUSTICE BURTON
Approved Judgment
of internal and external communications is likely to have continued to be
intercepted, and permitted in the event of an appropriate s.8(4) warrant, complying
inter alia with the concepts of necessity and proportionality, and properly authorised
by the Secretary of State, as provided by s.8(5) and s.5(6) and the Code. There is no
radical change, notwithstanding the dispute about some parts of the
communications. We are not satisfied that any provision in RIPA has become itself
ambiguous. If Mr Farr’s interpretation is incorrect, then at worst it has, as Mr Jaffey
himself submitted, “accelerated the process of more things in the world on a true
analysis being external than internal”, but at the ‘generic’ stage of interception.
In our judgment, there are only two consequences of this ‘acceleration’, given that,
as is clear, and set out above, the distinction only arises at “Stage one”, when there
is no examination:
101.
i)
All communications, whether they be external or internal, intercepted by
s.8(4) warrant come to be considered for examination by reference to s.16 of
RIPA, to which we turn below. It is that section which does what Mr Ryder
called in argument the “heavy lifting”.
ii)
The only impact, in our judgment, that could arise would be if Mr Farr’s
interpretation were incorrect, and it were the case that a warrant under s.8(4)
had been granted by express reference to it, and thus on an arguably false
basis. However, given that such warrants and such interception would be likely
to be applied for on a “generic basis”, and a bearer sought to be intercepted
would be bound to include, for the reasons that we have given, a substantial
quantity of communications which would be on any basis either external or at
any rate inchoate external communications in the sense discussed above, it
would seem to us not to follow that any such warrant would be so flawed.
Plainly if a warrant, for example a warrant issued impacting upon these
Claimants (if in due course it later becomes apparent, in subsequent closed
consideration or otherwise, that there has been such a warrant) were applied
for or granted on the basis of express reliance upon such an arguably flawed
basis, then it would be at that stage that the question would arise, and would
need to be resolved.
102.
We resolve the First Question in favour of the Respondents. No difference of view
as to the precise definition of external communications renders the s.8(4) regime
contrary to Article 8(2).
103.
The Second Question relates to s.16. There is no doubt that s.16 is to be regarded as
a safeguard for some of those whose communications have been intercepted under a
s.8(4) warrant, either by reference to external communications or to those internal
communications collaterally included under the warrant, so far as the effect of
s.16(2) is concerned. By that subsection (in general terms), communications so
intercepted could not be accessed (read, looked at or listened to) by reference to an
individual known to be in the UK in relation to communications sent by him or to
him. The sideline to the Statute refers to s.16 as an “extra safeguard in the case of
certificated warrants”, and the Commissioner has described it as a safeguard in
paragraph 6.5.54 of his Report. We have referred to Mr Ryder’s reference to s.16
doing the “heavy lifting”, and we do not accept that it is simply, as Mr Eadie put it