MR JUSTICE BURTON
Approved Judgment
Judge), which it had examined at length (as referred to in paragraph 92 above),
but also by virtue of the fact that “the Court highlights the extensive
jurisdiction of the IPT to examine any complaint of unlawful interception”.
This approval of the absence of judicial pre-authorisation was further
addressed by the Court in Telegraaf Media at paragraph 98.
vii)
117.
118.
We have seen nothing to cause us to take a different view from that of the
Tribunal in British Irish Rights Watch, particularly as to the matters set out
in (ii), (v) and (vi) above, which the Tribunal then specifically addressed.
We turn to the consideration of the balance of the Weber requirements, namely (3)
duration of the interception (4) examination, usage, and storage (5) disclosure and
(6) destruction. Such requirements, or safeguards, are addressed (with the exception
of s.16, to which we have referred) in s.15, which relates both to the contents and to
communications data. These provisions are supported by the following:
i)
The Code. The Code (save for its earlier absence) was not a subject of specific
criticism in Liberty v UK, and, relevantly, because s.15 applies to both s.8(1)
and s.8(4) warrants, was approved in Kennedy.
ii)
The arrangements. These are provided for in sub-sections 15(1), (5) and (6).
There are also the arrangements referred to in paragraph 42 above by
reference to ISA, SSA and CTA, and DPA; and the Code itself makes
reference to the arrangements in force with relation to s.15(2) and s.15(3) and
specifically with regard to s.16, all of which must be recorded in the records
referred to in paragraph 5.17 of the Code.
So far as such arrangements are concerned, they are, in Mr Eadie’s description,
“below the waterline”, and it is true to say that in paragraph 95 of Weber, in setting
out the Weber requirements, the ECtHR referred to the fact that it “has developed
the following minimum safeguards that should be set out in statute law”. However:
(a)
The ECtHR in paragraph 68 of Malone stated that “the detailed
procedures and conditions to be observed do not necessarily have
to be incorporated in rules of substantive law”, which must
“indicate the scope of [the] discretion conferred upon the
competent authorities and the manner of its exercise with sufficient
clarity, having regard to the legitimate aim of the measure in
question, to give the individual adequate protection against
arbitrary interference”. This is repeated in Bykov, in the passage
cited at paragraph 37 above.
(b)
It is clear that actual statute is not required – hence the approval of
the Code in Kennedy (and its anticipated approval in Liberty v
UK). The Code itself, as set out above, refers to the underlying
arrangements. Whether or not the Court in Liberty v UK
considered the Code in detail, and thus noticed the reference in it to
the arrangements, the way the Court dealt with the Code was by
noting (in paragraph 68) that “it is possible for a state to make
public certain details about the operation of the scheme of external
surveillance without compromising national security”. The Court