Out-Law News | 19 May 2010 | 4:22 pm | 6 min. read
The European Court of Human Rights has rejected a claim that the UK's Regulation of Investigatory Powers Act (RIPA) violates the human right to a private life. The UK's rules and safeguards on covert surveillance are proportionate, said the court.
The case concerned Malcolm Kennedy, a London businessman who was arrested for drunkenness in December 1990. He spent that night in jail and in the morning, another man in his cell was found dead.
Kennedy was convicted of that man's murder but the verdict was overturned on appeal. A retrial collapsed when a key prosecution witness failed to appear. A second retrial resulted in Kennedy being convicted of manslaughter and sentenced to nine years in prison.
Kennedy's conviction was highly controversial in the UK, due to missing and conflicting police evidence. It became the subject of a TV documentary. Kennedy has always maintained that police officers were responsible for the death and that he had been framed for a crime he did not commit.
After being released from prison in 1996, Kennedy became an active campaigner against miscarriages of justice. He subsequently started a removals business, but that business suffered. Kennedy said that was because his mail, telephone and email communications were being intercepted.
He claimed that calls to his phone were not being put through to him and that he was receiving a number of time-wasting hoax calls. He said that the interception was directly linked to his high-profile case and his campaigning activities. He alleged that the police and security services were continually and unlawfully renewing an interception warrant, originally authorised for the criminal proceedings against him, in order to intimidate him and to undermine his business.
Kennedy made subject access requests to intelligence agencies MI5 and GCHQ under the Data Protection Act, asking whether information about him was being processed by them. These requests were refused because the information requested was exempt from the disclosure requirements of the Act on the grounds of national security.
He then lodged complaints with the Investigatory Powers Tribunal (IPT), a body set up to investigate complaints about the use of powers contained in RIPA. Kennedy said his communications were being intercepted in “challengeable circumstances” amounting to a violation of his private life.
The IPT rejected Kennedy's complaints. This meant either that there had been no interception or that any interception which took place was lawful.
Kennedy took his case to the ECHR in Strasbourg in 2005. Yesterday, seven judges of the court unanimously rejected his claims.
Kennedy's main claim was that the UK had violated Article 8 of the European Convention on Human Rights.
Article 8(1) says that "Everyone has the right to respect for his private and family life, his home and his correspondence."
Article 8(2) allows authorities to interfere with the basic right "in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Kennedy said that the regime established by RIPA for authorizing the interception of communications did not comply with the requirements of Article 8(2) of the Convention. He also claimed that, under Article 6, the hearing before the IPT had not been fair and, under Article 13, that as a result he had been denied an effective remedy.
The case did not establish whether or not Kennedy's communications had been intercepted or not. The Government explained that is has a policy of "neither confirm nor deny" which it said was important to ensure the overall effectiveness of surveillance operations.
"If possible targets were able to gain insight into sensitive interception techniques and capabilities, then they would be able to take steps to undermine the usefulness of any intelligence gathered against them," it argued, according to the ruling.
However, the Government also said that Kennedy's Article 8 claim should be dismissed because "he had not established a reasonable likelihood … that his communications had been intercepted."
The ECHR disagreed. It said that an individual might, under certain conditions to be determined in each case, claim to be the victim of a violation as a result of the mere existence of secret measures, even if they were not applied to him.
The Court said it could not be excluded that secret surveillance measures were applied to Kennedy or that he was, at the material time, potentially at risk of being subjected to such measures. So Kennedy could complain of an interference with his Article 8 rights – albeit the Court went on to reject his complaint.
The Court said that the interference in question pursued the legitimate aims of protecting national security and the economic well-being of the country and preventing crime. It said that RIPA defined with sufficient precision the cases in which communications could be intercepted.
For interference with Article 8 rights to be justified, the Convention says that a person affected must be able to foresee the consequences of the domestic law for him. Kennedy said that RIPA lacked foreseeability because it listed justifications for interception in general terms only. He described the terms "national security" and "serious crime", which appear in RIPA, as being insufficiently clear.
But the ECHR said it did not matter that the offences allowing interception were not set out by name.
"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," said the ruling. "By the nature of things, threats to national security may vary in character and may be unanticipated or difficult to define in advance".
Kennedy had also objected to the processing, communication and destruction of data. But the Court said that the overall duration of interception measures had to be left to the discretion of the domestic authorities, as long as adequate safeguards were put in place.
In the UK the renewal or cancellation of interception warrants were under the systematic supervision of the Secretary of State. In addition, UK law provided that warrants for internal communications related to one person or one set of premises only, thereby limiting the scope of the authorities’ discretion to intercept and listen to private communications.
RIPA is supplemented by the Interception of Communications Code of Practice. This Code's safeguards on access to data were also praised by the Court.
"In particular, the Code strictly limits the number of persons to whom intercept material can be disclosed, imposing a requirement for the appropriate level of security clearance as well as a requirement to communicate data only where there is a 'need to know'," it said.
"It further clarifies that only so much of the intercept material as the individual needs to know is to be disclosed and that where a summary of the material would suffice, then only a summary should be disclosed," said the ruling.
The Court also welcomed the Code's requirements for secure handling and storage and security vetting.
"In the circumstances, the Court is satisfied that the provisions on processing and communication of intercept material provide adequate safeguards for the protection of data obtained," it said.
In terms of supervision of the RIPA regime, under the legislation a Commissioner was appointed who was independent from the executive and legislative authorities. His annual report to the Prime Minister was a public document and was laid before Parliament.
"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," it said.
The Court also highlighted the extensive jurisdiction of the IPT to examine any complaint of unlawful interception of communications. Unlike in many other countries, any person could apply to the IPT, which was an independent and impartial body.
The Court concluded that in Kennedy's case there was no violation of article 8.
"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," it said. "The Court further observes that there is no evidence of any significant shortcomings in the application and operation of the surveillance regime."
"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)," it said.
The court went on to reject Kennedy's claims under Articles 6 and 13 of the Convention. It said that the policy of UK authorities to "neither confirm nor deny" surveillance was proportionate and necessary.