MR JUSTICE BURTON
Approved Judgment
material. Since it is common ground for the purposes of this case (see paragraph 12
above) that the Claimants may be entitled to the benefit of any protection under
Article 10 otherwise available to journalists, it was submitted that the consequences
of Sanoma should follow.
150.
The Respondents do not accept that this applies to any context in which Article 10 is
engaged, and in particular point to Telegraaf Media at paragraphs 96-97, in which
the ECtHR made clear that such a case would be limited to where there was targeted
surveillance of journalists with a view to obtaining knowledge of their sources. The
Respondents further refer to the words of Laws LJ in Miranda v the Secretary of
State for the Home Department [2014] 1 WLR 3140, whereby he rejected the
suggested absolute rule of prior judicial scrutiny for cases involving State
interference with journalistic freedom.
151.
We are in any event entirely persuaded that this, which is not of course a case of
targeted surveillance of journalists, or indeed of NGOs, is not such an appropriate
case, particularly where we have decided in paragraph 116(vi) above, that the
present system is adequate in accordance with Convention jurisprudence without
prior judicial authorisation. In the context of the untargeted monitoring by s.8(4)
warrant, it is clearly impossible to anticipate a judicial pre-authorisation prior to the
warrant limited to what might turn out to impact upon Article 10. The only
situation in which it might arise would be in the event that in the course of
examination of the contents, some question of journalistic confidence might arise.
There is, however, express provision in the Code (at paragraph 3.11), to which we
have already referred, in relation to treatment of such material.
152.
The answer to the Article 10 issues is therefore the same as in respect of the Article
8 issues.
CONSEQUENCES
153.
We have therefore reached the necessary conclusions as to the Four Questions set
out in paragraph 80 above: No as to the First, Yes as to the Second and Third and
No as to the Fourth. However, with regard to the First and Third Questions, our
answers are given with the benefit of the Disclosures by the Respondents given in
paragraphs 47-48 and 126 above.
154.
It is apparent that the Disclosures are in each case such that their effect is to reveal
the existence of a safeguard rendering it less, rather than more, likely that there will
be objectionable interference with privacy or arbitrary conduct by the Respondents.
We do not in any event consider that the disclosure (by paragraph 3 of the
Disclosure) of the additional recording obligation, while welcome, makes any
material difference. But it is obvious that the disclosure as to the procedures
relating to the obtaining and treatment of intercept pursuant to Prism is of
significance. We shall invite submissions from the parties as to the consequence in
respect of whether there has been breach of Article 8 prior hereto, only by virtue of
the Disclosures.
155.
The Tribunal is satisfied that no further disclosure is required to be made as to the
detail of the Respondents’ practices and procedures in order to render them
sufficiently accessible. However we in any event consider it of importance that