KENNEDY v. THE UNITED KINGDOM JUDGMENT
25
97. The fact that activities, such as interception of communications and surveillance,
may also impact on the Convention rights of individuals, such as the right to respect
for private life and communications in Article 8, does not of itself necessarily mean
that the Tribunal make determinations of civil rights ...
98. Further, the power of the Tribunal to make an award of compensation does not
necessarily demonstrate that the Tribunal determine civil rights ...
99. Applying the approach in the Strasbourg cases that account should be taken of
the content of the rights in question and of the effect of the relevant decision on them
..., the Tribunal conclude that the public law or public order aspects of the claims and
complaints to the Tribunal do not predominate and are not decisive of the juristic
character of the determinations of the Tribunal. Those determinations have a
sufficiently decisive impact on the private law rights of individuals and organisations
to attract the application of Article 6.
100. The jurisdiction of the Tribunal is invoked by the initiation of claims and
complaints by persons wishing to protect, and to obtain redress for alleged
infringements of, their underlying rights of confidentiality and of privacy for person,
property and communications. There is a broad measure of protection for such rights
in English private law in the torts of trespass to person and property, in the tort of
nuisance, in the tort of misfeasance in a public office, in the statutory protection from
harassment and in the developing equitable doctrine of breach of confidence ...
101. Since 2 October 2000 there has been added statutory protection for invasion of
Article 8 rights by public authorities. This follows from the duties imposed on public
authorities by section 6 and the rights conferred on victims by section 7 of the
[Human Rights Act]. The concept of 'civil rights and obligations' is a fair and
reasonable description of those common law and statutory rights and obligations,
which form the legal foundation of a person's right to bring claims and make
complaints by virtue of section 65.
102. The fact that the alleged infringements of those rights is by public authorities in
purported discretionary exercise of administrative investigatory powers does not
detract from the 'civil' nature of the rights and obligations in issue ...
...
107. For all practical purposes the Tribunal is also the only forum for the effective
investigation and determination of complaints and for granting redress for them where
appropriate ...
108. In brief, viewing the concept of determination of 'civil rights' in the round and
in the light of the Strasbourg decisions, the Tribunal conclude that RIPA, which puts
all interception, surveillance and similar intelligence gathering powers on a statutory
footing, confers, as part of that special framework, additional 'civil rights' on persons
affected by the unlawful exercise of those powers. It does so by establishing a single
specialised Tribunal for the judicial determination and redress of grievances arising
from the unlawful use of investigatory powers.”
92. As to the proper construction of Rule 9 regarding oral hearings, the
IPT found: