persons in custody. However, the Service Procedure
was only implemented on 22 June 2010. It was therefore
not in force during the applicant’s detention in May
2010.
141. The Court has noted the statement of the
Government in their observations that only one
intrusive surveillance order had been granted up till
then in the three years since the 2010 Order
(introducing the Revised Code) had come into force in
April 2010 (see paragraphs 11 and 12 above).
Nevertheless, in the absence of the “arrangements”
anticipated by the covert surveillance regime, the
Court, sharing the concerns of Lord Phillips and Lord
Neuberger in the House of Lords in this regard (see
paragraphs 36 – 37 above) is not satisfied that the
provisions in Part II of RIPA and the Revised Code
concerning the examination, use and storage of the
material obtained, the precautions to be taken when
communicating the material to other parties, and the
circumstances in which recordings may or must be
erased or the material destroyed provide sufficient
safeguards for the protection of the material obtained
by covert surveillance.
142. Consequently, the Court considers that, to this
extent, during the relevant period of the applicant’s
detention (4 – 6 May 2010 – see paragraphs 18 – 20
above), the impugned surveillance measures, insofar as
they may have been applied to him, did not meet the
requirements of Article 8 § 2 of the Convention as
elucidated in the Court’s case-law.”
80.
It seems to us entirely clear that they were addressing the adequacy of the
Property Code (as compared with the Interception Code) in respect of LPP
communications, in relation to which (as discussed in Issue 10) the
Government has previously conceded before this Tribunal that the regime
established by and for the Intelligence Services was not compliant with the
Convention (Belhadj [2015] UKIP TRIB 13_132-8 of 29 April 2015). When
the ECtHR addressed, in the cited paragraph 139 above, the benefits of the
Interception Code, it is plain to us that they were doing so not in respect of
Weber (4) to (6) generally, but in respect of the way in which the Interception
Code gave improved safeguards by protecting “the interests of persons
affected by the surveillance of legal consultations”. The Court did not address
specifically, and reach conclusions as to, whether the Property Code was
inadequate (other than in respect of LPP) to comply with Weber (4) to (6) in
the light of:
(i) the statutory obligations of and upon GCHQ referred to in paragraph
75 (i) and (ii) above (very much more significant than those imposed
upon the Police):