MR JUSTICE BURTON
Approved Judgment
something less than full Weber requirements, then, if, contrary to his
submissions, Weber applies to communications data at all, a lesser protection
is permitted, so far as communications data is concerned, and in any event the
exemption was fully justified, as above.
113.
Mr Ryder did not challenge the suggestion that being able to look at
communications data in order to determine whether someone is in the UK could be
of use, but his submission was twofold. First that that could be achieved by making
an exception to provide for the use of metadata for that purpose. That seems to us
to be an impossibly complicated or convoluted course. His second argument was as
set out above, namely that metadata so obtained could be used (and used as
described by Mr Jaffey) to build up a database – what we described in the course of
his submissions as a ‘just in case’ database, which could still comply with s.15(3)
and (4) of RIPA.
114.
We conclude that although the Weber requirements do extend to protection in
respect of communications data, for the reasons set out by the Respondents there is
such protection or safeguard by reference to s.15, and, insofar as there is, in the
particular circumstances governed by s.16, greater protection in certain respects for
communications than for communications data, that difference is justified and
proportionate by virtue of the use of that communications data for the purpose of
identifying the individuals whose intercepted material is to be protected by
reference to s.16(2)(a). That answers the Second Question. With regard to the
retention of communications data in a database, we return to this matter below.
115.
We turn to consider whether the system, leaving aside s.16, is a sufficient
compliance with Weber and in accordance with law. In our recitation of the
relevant paragraph, 95, of Weber (in paragraph 33 above) we inserted numbers, and
have found it convenient to refer to the six Weber requirements as Weber 1,
Weber 2, etc. We are content to follow, and agree with, the observation of the
ECtHR in paragraph 160 of its judgment in Kennedy that Weber 1 and Weber 2
overlap, and we shall therefore consider them together.
116.
So far as a s.8(4) warrant is concerned, the following seems to be clear:
i)
The reference to “national security” is a sufficient description: see Esbester at
CD 74 and Kennedy at paragraph 159, where the ECtHR stated:
“. . .The applicant criticises the terms “national security” and
“serious crime” as being insufficiently clear. The Court
disagrees. It observes that the term “national security” is
frequently employed in both national and international
legislation and constitutes one of the legitimate aims to which
Article 8(2) itself refers. The Court has previously emphasised
that the requirement of “foreseeability” of the law does not go
so far as to compel States to enact legal provisions listing in
detail all conduct that may prompt a decision to deport an
individual on “national security” grounds. By the nature of
things, threats to national security may vary in character and
may be unanticipated or difficult to define in advance.”