MR JUSTICE BURTON
Approved Judgment
distinction would be the need to obtain a s.16(3) certificate in almost every
case rather than by way of an exception, and normally without the information
available in respect of those in the UK. The Respondents rely on what they
submit to be obvious, namely that it is harder to investigate terrorism and
crime abroad, and difficult if not impossible to provide a case for a certificate
under s.16(3) in every case, rather than the exceptional. The numbers of those
involved if s.16(3) certificates were extended to those abroad would inevitably
be very substantial (we were provided with figures in closed hearing) and this
would radically undermine the efficacy of the s.8(4) regime. In any event in
relation to a potential target abroad there might not be any or any sufficient
information for a s.16(3) certificate.
148.
As to the Fourth Question, we are persuaded by the Respondents, for the reasons
they put forward, that any indirect discrimination is sufficiently justified. It is quite
plain to us that the imposition of a requirement for a s.16(3) certificate in every case
would radically undermine the efficacy of the s.8(4) regime, given the pre-eminent
role of that regime in the identification of threats to UK national security from
abroad.
Article 10
149.
We return finally to the balance of the argument in relation to Article 10 (referred to
in paragraph 12 above). Article 10 reads as follows:
“(1) Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to
receive and impart information and ideas without
interference by public authority and regardless of
frontiers. This article shall not prevent States from
requiring the licensing of broadcasting, television or
cinema enterprises.
(2)
The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic
society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder or
crime, for the protection of health or morals, for the
protection of the reputation or the rights of others, for
preventing the disclosure of information received in
confidence, or for maintaining the authority and
impartiality of the judiciary.”
It was accepted at the hearing that there is no separate argument in relation to
Article 10(2), over and above that arising out of Article 8(2), save that there may be
a special argument relating to Article 10 with respect to the need for judicial preauthorisation of a warrant if such were not necessary, as indeed we have found, in
respect of Article 8. Reference was made by Mr Ryder to Sanoma Uitgevers BV v
The Netherlands [2011] EMLR 4, in which the ECtHR concluded that prior
judicial authorisation was required before the state may seize and retain journalistic