30
KENNEDY v. THE UNITED KINGDOM JUDGMENT
allegation that a general complaint was advanced were misleading. It was
clear from the description of his complaint and the subsequent paragraphs
particularising his claim that the reference to interception was to an alleged
interception in his case, and not to interception in general, and that the
complaint that the interception was not in accordance with the law related to
an alleged breach of the Data Protection Act, and not to any alleged
inadequacies of the RIPA regime (see paragraphs 12 and 14 above).
103. The Government submitted that Article 35 § 1 had a special
significance in the context of secret surveillance, as the IPT was specifically
designed to be able to consider and investigate closed materials. It had
extensive powers to call for evidence from the intercepting agencies and
could request assistance from the Commissioner, who had detailed working
knowledge and practice of the section 8(1) warrant regime.
104. As regards the applicant's specific complaint that his
communications had been unlawfully intercepted, the Government
contended that the complaint was manifestly ill-founded as the applicant
had failed to show that there had been an interference for the purposes of
Article 8. In their submission, he had not established a reasonable
likelihood, as required by the Court's case-law, that his communications had
been intercepted.
105. The Government accordingly invited the Court to find both the
general and the specific complaints under Article 8 inadmissible.
b. The applicant
106. The applicant refuted the suggestion that his complaint before the
IPT had failed to challenge the Convention-compatibility of the RIPA
regime on internal communications and that he had, therefore, failed to
exhaust domestic remedies in this regard. He pointed out that one of the
express grounds of his complaint to the IPT had been that “the interception
and processing ha[d] at no time been in accordance with the law as required
by Article 8(2)” (see paragraph 13 above). He argued that his assertion
before the IPT was that any warrants issued or renewed under RIPA
violated Article 8.
107. The applicant further disputed that there had been no interference in
his case, maintaining that he had established a reasonable likelihood that
interception had taken place and that, in any event, the mere existence of
RIPA was sufficient to show an interference.
2. The Court's assessment
108. As regards the Government's objection that the applicant failed to
exhaust domestic remedies, the Court considers that the summary of the
applicant's case set out by the IPT in its ruling of 9 January 2004 (see
paragraph 17 above) as well as the Grounds of Claim and Complaint
themselves (see paragraphs 10 to 15 above) support the Government's