MR JUSTICE BURTON
Approved Judgment
ii)
The absence of targeting at ‘Stage one’ is acceptable and inevitable. This was
so in the Weber case itself (by reference to the ‘strategic monitoring’ being
there addressed). In Liberty v UK the Court criticised the “virtually
unfettered” nature of the legal discretion granted to the executive for the
physical capture of external communications (paragraph 64), but would
appear, rather as in Weber itself, to have concluded that the defect was the
failure to set out with sufficient clarity the scope or manner of such exercise
(paragraph 69), and in particular the absence of the Code, which by then had
been published (paragraph 68).
iii)
The Code was plainly acceptable so far as the s.8(1) warrant is concerned,
when it was fully considered by the Court in Kennedy. Insofar as the Code
was referred to in Liberty v UK (at paragraph 68), no specific complaints
were made or problems identified.
iv)
We heard considerable argument by Mr Ryder as to the appropriateness of
paragraph 5.2 of the Code. Of course it may be that in a given case the
particulars supplied in an application for a warrant would be found to have
been insufficient, although we note the Commissioner’s duties as to the
supervision and inspection of such warrants. We find that on its face
paragraph 5.2 is impressive, and that the provisions of paragraph 5.2,
particularly together with those of paragraphs 2.4 and 2.5 and 5.3, 5.4, 5.5 and
5.6 referred to in paragraph 56 above, dealing with necessity and
proportionality, are satisfactory.
v)
There is in our judgment no call for search words to be included in an
application for a warrant or in the warrant itself. It seems to us that this would
unnecessarily undermine and limit the operation of the warrant and be in any
event entirely unrealistic. It does not appear to us to be in any way demanded
by the Weber requirements. So far as the facts of Weber are concerned, it
appears that some form of notification of search words was required under the
German domestic law. But the facts of Weber are of course not prescriptive,
and, particularly as the outcome was that the Court found that the application
in Weber was “manifestly unfounded”, it does not impose on any other
legislature the requirement either to have some system of search words, (or
indeed to adopt another matter which formed part of the facts of Weber,
namely a provision for some form of notification to the target(s) that there is or
has been a warrant – a proposition that was not argued before us, and in our
judgment rightly so). We agree with the conclusion of this Tribunal in British
Irish Rights Watch that such a course would be both risky and pointless.
vi)
There is also in our judgment no basis for objection by virtue of the absence
for judicial pre-authorisation of a warrant. The United Kingdom system is for
the approval by the highest level of government, namely by the Secretary of
State. The absence of such judicial authorisation in Liberty v UK was not a
matter of criticism, and the Court in Kennedy concluded (at paragraph 167)
that, whereas “it has previously indicated that in a field where abuse is
potentially so easy in individual cases and could have such harmful
consequences for democratic society as a whole, it is in principle desirable to
entrust supervisory control to a judge”, it was satisfied, not only by virtue of
the existence of the Commissioner (then, as now, a distinguished retired