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UK's secret surveillance regime 'does not breach human rights'

ECHR rules sneaky RIPA peeking perfectly proper

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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 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.

The 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 ruling:

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.

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