KENNEDY v. THE UNITED KINGDOM JUDGMENT

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35. Section 81(5) provides:
“For the purposes of this Act detecting crime shall be taken to include–
(a) establishing by whom, for what purpose, by what means and generally in what
circumstances any crime was committed; and
(b) the apprehension of the person by whom any crime was committed;
and any reference in this Act to preventing or detecting serious crime shall be
construed accordingly ...”

36. Under section 5(4), the Secretary of State must, when assessing
whether the requirements in section 5(2) are met, consider whether the
information sought to be obtained under the warrant could reasonably be
obtained by other means.
37. Section 5(5) provides that a warrant shall not be considered
necessary for the purpose of safeguarding the economic well-being of the
United Kingdom unless the information which it is thought necessary to
obtain is information relating to the acts or intentions of persons outside the
British Islands.
38. Section 7(2)(a) requires the Secretary of State personally to issue all
warrants of the nature at issue in the present case, except in cases of urgency
where he must nonetheless personally authorise the issuing of the warrant.
Section 6(2) provides an exhaustive list of those who may apply for an
interception warrant, including the heads of national intelligence bodies,
heads of police forces and the Customs and Excise Commissioners.
39. Paragraphs 2.4 to 2.5 of the Code provide additional guidance on the
application of the proportionality and necessity test in section 5(2):
“2.4 Obtaining a warrant under the Act will only ensure that the interception
authorised is a justifiable interference with an individual's rights under Article 8 of the
European Convention of Human Rights (the right to privacy) if it is necessary and
proportionate for the interception to take place. The Act recognises this by first
requiring that the Secretary of State believes that the authorisation is necessary on one
or more of the statutory grounds set out in section 5(3) of the Act. This requires him to
believe that it is necessary to undertake the interception which is to be authorised for a
particular purpose falling within the relevant statutory ground.
2.5 Then, if the interception is necessary, the Secretary of State must also believe
that it is proportionate to what is sought to be achieved by carrying it out. This
involves balancing the intrusiveness of the interference, against the need for it in
operational terms. Interception of communications will not be proportionate if it is
excessive in the circumstances of the case or if the information which is sought could
reasonably be obtained by other means. Further, all interception should be carefully
managed to meet the objective in question and must not be arbitrary or unfair.”

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