MR JUSTICE BURTON
Approved Judgment
in reply submissions, “procedural”. We shall return later to the context in which he
so submitted.
104.
There are two respects in which the Claimants submit that s.16 fails as a safeguard.
The first was addressed by Mr Ryder by reference to the terms of s.16(2). He
submits that the two provisos there contained in relation to access to intercepted
material are insufficient. As to (a), that material will not be accessed according to a
factor which is referable to an individual who is known to be in the UK, he submits
that this is inadequate. Referable to is not wide enough or not sufficiently clear; and
known to be, as opposed to suspected to be, is too low a hurdle.
105.
We do not accept either of these submissions. Referable to is in our judgment a
wide term, and generally accepted to be so as a matter of statutory construction, and
would prohibit the use of terms which were connected with, or could lead to the
identity of, the individual by the use of names, nicknames, addresses, descriptions
or other similar methods. If it was more specific, it would become unworkable. To
impose an obligation upon the Respondents not to read the communication if the
presence of the individual in the UK is simply suspected would impose far too high
an obligation, particularly in the course of extended examination of substantial
numbers of communications. The ability to use the communications data/metadata
(to which we return below) would render it a manageable task to ascertain whether
the individual could be said to be known to be in the UK. As for the concomitant
subparagraph (b), we do not consider that this is too limited a restriction: the aim is
to prevent access to communications sent by or sent to an individual who is in the
United Kingdom.
106.
We turn to the second criticism of s.16, which was the subject of a two-pronged
attack by Mr Ryder and Mr Jaffey. Mr Ryder pointed out that s.16 does not exclude
examination of the related communications data, permitted by s.5(6)(b) and s.8(5)
to be included with the communications under a s.8(4) warrant, because the words
intercepted material, as defined in s.20 (set out above), refers to “the contents of any
communications intercepted by an interception to which the warrant relates”, and
thus not to communications data (separately there defined).
107.
Mr Jaffey further points out that, once the communications data could be examined,
such examination was not limited to the purpose for which the warrant had been
given, but could be carried out for any purpose falling within s.5(3)(a)(b) or (c) –
national security, preventing or detecting serious crime, safeguarding the economic
wellbeing of the UK. This is therefore a much less satisfactory safeguard than if it
extended to the exclusion of examination of contents and related communication
data.
108.
Communications data under RIPA are explained in Privacy’s Reply (paragraph 21)
as including the following:
“Data associated with emails:
Sender’s name, email, and IP address
Recipient’s name and email address