MR JUSTICE BURTON
Approved Judgment
The claim is made by reference to differential treatment on the grounds of national
origin.
142.
The case was originally put by the Claimants in the pleadings and submissions by
reference to the alleged difference between s.8(1) as relating to internal and s8(4) to
external communications. This however was not pursued orally, and Mr Jaffey,
supported by Ms Brimelow, made the case by reference to s.16(2) of RIPA.
143.
It is not suggested that there is direct discrimination on nationality grounds. The
case is put by reference to indirect discrimination, by reference to location, and thus
indirectly to national origin. Communications intercepted under a s.8(4) warrant
cannot be read if sent by or to a person located in the UK, by reference to the
s.16(2) procedure discussed at some length above. The exclusion, as discussed
above, is limited to using (in respect of contents) relevant search words to discover
communications, whether external or internal sent to or received by someone in the
UK, and is described, as set out in paragraph 103 above, as a safeguard.
144.
The complaint is that favour is thus shown to those who are located in the UK, so
far as the reading of their communications is concerned. If they are in the UK, they
are more likely to be of UK nationality, and there is thus indirect discrimination
upon grounds of national origin. Direct discrimination on such grounds requires
“very weighty” justification (Gaygusuz v Austria [1996] 23 EHRR 365). This is
however indirect discrimination, and simply requires a rational justification.
145.
The background is of course, as discussed above, that a s.8(1) warrant is a targeted
warrant, and insofar as directed within the UK it avoids the criticism of being a
general warrant (as Mr Jaffey explained by reference to a fascinating exegesis of
English law, back to John Wilkes). The need to avoid a ‘general warrant’ requires
the authorities here to target those they can by more specific methods of
surveillance within the jurisdiction, short of a s.8 warrant. A s.8(4) warrant is
primarily aimed at external communications, and not primarily at those located
here; although the exemption under s.16(2) can be ousted by means of a certificate
under s.16(3).
146.
Mr Jaffey’s submission is that there is thus a detrimental treatment of those who are
not located here, not justifiable on that ground. The Respondents submit that the
system is to deal with an unintended method of surveillance of those in the UK, as
opposed to normal methods which are not available against those abroad.
147.
The Respondents accept that there is an arguable distinction based upon location,
and thus, by reference to the Claimants’ arguments, on a ground by reference to
national origin. They submit however that there is no doubt that there is a rational
justification for such distinction, as follows:
i)
Protection is needed for those against whom otherwise a s.8(4) warrant could
be used to avoid the need for other ‘domestic’ remedies of surveillance, not
available against those abroad. Hence the exceptional nature of a s.16(3)
certificate.
ii)
Given that the purpose of accessing external communications is primarily to
obtain information relating to those abroad, the consequence of eliminating the