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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 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.

See: The ruling (40 pages)

Copyright © 2010, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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