ECHR ruling in Kennedy v. UK upholds proportionality of UK RIPA legislation on interception of communications

Application no. 26839/05, Judgment of 18 May 2010.

The applicant, a released prisoner in a high-profile murder case in the UK,  alleged that local calls to his telephone were not being put through because his mail, telephone and email communications were being intercepted. The applicant believed that the interception of his communications was directly linked to his high profile case and his subsequent involvement in campaigning against miscarriages of justice. He alleged that the police and security services were continually and unlawfully renewing an interception warrant (under s. 8(1) of the UK’s  Regulation of Investigatory Powers Act 2000) – originally authorised for the criminal proceedings against him – in order to intimidate him and undermine his business activities in violation of Article 8 of the Convention.

After an short, but interesting, discussion on whether the applicant had failed to exhaust all domestic remedies (par.109-110), the court reïterates its line of jurisprudence on secret surveillance measures (Klass, Malone..) including by stating:

124.  Sight should not be lost of the special reasons justifying the Court’s departure, in cases concerning secret measures, from its general approach which denies individuals the right to challenge a law in abstracto. The principal reason was to ensure that the secrecy of such measures did not result in the measures being effectively unchallengeable and outside the supervision of the national judicial authorities and the Court (see Klass and Others, cited above, §§ 34 and 36). In order to assess, in a particular case, whether an individual can claim an interference as a result of the mere existence of legislation permitting secret surveillance measures, the Court must have regard to the availability of any remedies at the national level and the risk of secret surveillance measures being applied to him. Where there is no possibility of challenging the alleged application of secret surveillance measures at domestic level, widespread suspicion and concern among the general public that secret surveillance powers are being abused cannot be said to be unjustified. In such cases, even where the actual risk of surveillance is low, there is a greater need for scrutiny by this Court.

Then the Court moved on, saying that the applicant’s allegations that calls were not put through to him and that he received hoax calls are not “sufficient to support the applicant’s contention that his communications have been intercepted. Accordingly, it concludes that the applicant has failed to demonstrate a reasonable likelihood that there was actual interception in his case.” (par.126).

However,

128. As to whether a particular risk of surveillance arises in the applicant’s case, the Court notes that under the provisions of RIPA on internal communications, any person within the United Kingdom may have his communications intercepted if interception is deemed necessary on one or more of the grounds listed in section 5(3) (see paragraphs 31 to 32 above). The applicant has alleged that he is at particular risk of having his communications intercepted as a result of his high-profile murder case, in which he made allegations of police impropriety (see paragraph 5 above), and his subsequent campaigning against miscarriages of justice. The Court observes that neither of these reasons would appear to fall within the grounds listed in section 5(3) RIPA. However, in light of the applicant’s allegations that any interception is taking place without lawful basis in order to intimidate him (see paragraph 7 above), the Court considers that it cannot be excluded that secret surveillance measures were applied to him or that he was, at the material time, potentially at risk of being subjected to such measures

So the Court found an interference with article 8.1 in respect of the applicant’s general complaint about the RIPA provisions and not in respect of any actual interception activity allegedly taking place. Accordingly, in its examination of the justification for the interference under Article 8.2, the Court examined the proportionality of the RIPA legislation itself and the safeguards built into the system allowing for secret surveillance, rather than the proportionality of any specific measures taken in respect of the applicant. In the circumstances, the lawfulness of the interference is closely related to the question whether the “necessity” test has been complied with in respect of the RIPA regime and it is therefore appropriate for the Court to address jointly the “in accordance with the law” and “necessity” requirements.

The Court examined the RIPA regime with reference to each of the safeguards and the guarantees against abuse outlined in Weber and Saravia and, where relevant, to its findings in respect of the previous legislation at issue in Liberty and Others. The judge’s assessment on the condition of foreseeability is most interesting.

1. The Court stated that RIPA’s section 5, together with the interpretative clarifications in the Act, gave citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to secret surveillance measures. It emphasized that the condition  of foreseeability “does not require States to set out exhaustively by  name the specific offences which may give rise to interception.

159. The Court has previously emphasised that the requirement of “foreseeability” of the law does not go so far as to compel States to enact legal provisions listing in detail all conduct that may prompt a decision to deport an individual on “national security” grounds. By the nature of things, threats to national security may vary in character and may be unanticipated or difficult to define in advance (Al-Nashif, cited above, § 121). Similar considerations apply to the use of the term in the context of secret surveillance.

2. The court stated that legislation must describe the categories of persons who, in practice, may have their communications intercepted, but that , in this case, there is an overlap between the condition that the categories of persons be set out and the condition that the nature of the offences be clearly defined. The  relevant circumstances which can give rise to interception, discussed  in the preceding paragraph, give guidance as to the categories of  persons  who are likely, in practice, to have their communications intercepted.

3. Finally, the Court notes that in internal communications cases, the warrant itself must clearly specify, either by name or by description, one person as the interception subject or a single set of premises as the premises in respect of which the warrant is ordered (see paragraphs 40 to 41 above). Names, addresses, telephone numbers and other relevant information must be specified in the schedule to the warrant.

160. Indiscriminate capturing of vast amounts of communications is not permitted under the internal communications provisions of RIPA (cf. Liberty and Others, cited above, § 64). The Court considers that, in the circumstances, no further clarification in the legislation or the Code of the categories of persons liable to have their communications intercepted can reasonably be required.

4. The Court concluded that RIPA’s provisions on duration, renewal and cancellation of interception are sufficiently clear in the following context:

161. In the context of national security and serious crime, the Court observes that the scale of the criminal activities involved is such that their planning often takes some time. Subsequent investigations may also be of some duration, in light of the general complexity of such cases and the numbers of individuals involved. The Court is therefore of the view that the overall duration of any interception measures will depend on the complexity and duration of the investigation in question and, provided that adequate safeguards exist, it is not unreasonable to leave this matter for the discretion of the relevant domestic authorities.

5. The Court was also satisfied that the provisions on processing and communication of intercept material provided adequate safeguards for the protection of data obtained. (par.163) and noted the important role of the Interception  of Communications Commissioner established under RIPA (par. 166-167)

The Court considers that the Commissioner’s role in ensuring  that the provisions of RIPA and the Code are observed and applied  correctly  is of particular value and his biannual review of a random selection of specific cases in which interception has been authorised provides an important control of the activities of the intercepting agencies  and of the Secretary of State himself.
(…)
The Court observes that the reports of the Commissioner scrutinise any  errors which have occurred in the operation of the legislation. In his  2007 report, the Commissioner commented that none of the breaches or  errors identified were deliberate and that, where interception had,  as a consequence of human or technical error, unlawfully taken place,  any intercept material was destroyed as soon as the error was discovered (see paragraph 73 above). There is therefore no evidence that any deliberate abuse of  interception powers is taking place.

6. Last but not least, the Court assessed again the tricky issue of entrusting supervisory control over secret surveillance to a judge.

167. n the present case, the Court highlights the extensive jurisdiction of the IPT to examine any complaint of unlawful interception. Unlike in many other domestic systems (see, for example, the G 10 Law discussed in the context of Klass and Others and Weber and Saravia, both cited above), any person who suspects that his communications have been or are being intercepted may apply to the IPT (see paragraph 76  above). The jurisdiction of the IPT does not, therefore, depend on notification to the interception subject that there has been an interception of his communications. The Court emphasises that the IPT is an independent and impartial body, which has adopted its own rules of procedure. The members of the tribunal must hold or have held high judicial office or be experienced lawyers (see paragraph 75 above). In undertaking its examination of complaints by individuals, the IPT has access to closed material and has the power to require the Commissioner to provide it with any assistance it thinks fit and the power to order disclosure by those involved in the authorisation and execution of a warrant of all documents it considers relevant (see paragraph 78  above). In the event that the IPT finds in the applicant’s favour, it can, inter alia, quash any interception order, require destruction of intercept material and order compensation to be paid (see paragraph 80 above). The publication of the IPT’s legal rulings further enhances the level of scrutiny afforded to secret surveillance activities in the United Kingdom (see paragraph 89  above).

7. Conclusion: No shortcomings in RIPA’s regime.

169. In the circumstances, the Court considers that the domestic law on  interception  of internal communications together with the clarifications brought  by the publication of the Code indicate with sufficient clarity the  procedures for the authorisation and processing of interception warrants as well as the processing, communicating and destruction of intercept  material collected. The Court further observes that there is no evidence of any significant shortcomings in the application and operation of  the surveillance regime. On the contrary, the various reports of the  Commissioner have highlighted the diligence with which the authorities  implement RIPA and correct any technical or human errors which  accidentally occur (see paragraphs 62,67,7173 above). Having regard to the safeguards against abuse in the procedures  as well as the more general safeguards offered by the supervision of  the Commissioner and the review of the IPT, the impugned surveillance  measures, insofar as they may have been applied to the applicant in  the circumstances outlined in the present case, are justified under  Article 8 § 2.

170.  There has accordingly been no violation of Article 8 of the Convention.

The court also considered that the restrictions on the procedure before the IPT did not violate the applicant’s right to a fair trial, reiterating that a) the disclosure of relevant evidence is not an absolute right and b) national security may justify the exclusion of the  public from the proceedings.

par. 190: In reaching this conclusion, the Court emphasises the  breadth of access to the IPT enjoyed by those complaining about  interception  within the United Kingdom and the absence of any evidential burden to  be overcome in order to lodge an application with the IPT. In order  to ensure the efficacy of the secret surveillance regime, and bearing in mind the importance of such measures to the fight against terrorism  and serious crime, the Court considers that the restrictions on the  applicant’s rights in the context of the proceedings before the IPT  were both necessary and proportionate and did not impair the very  essence  of the applicant’s Article 6 rights.

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