KENNEDY v. THE UNITED KINGDOM JUDGMENT
37
124. Sight should not be lost of the special reasons justifying the Court's
departure, in cases concerning secret measures, from its general approach
which denies individuals the right to challenge a law in abstracto. The
principal reason was to ensure that the secrecy of such measures did not
result in the measures being effectively unchallengeable and outside the
supervision of the national judicial authorities and the Court (see Klass and
Others, cited above, §§ 34 and 36). In order to assess, in a particular case,
whether an individual can claim an interference as a result of the mere
existence of legislation permitting secret surveillance measures, the Court
must have regard to the availability of any remedies at the national level and
the risk of secret surveillance measures being applied to him. Where there is
no possibility of challenging the alleged application of secret surveillance
measures at domestic level, widespread suspicion and concern among the
general public that secret surveillance powers are being abused cannot be
said to be unjustified. In such cases, even where the actual risk of
surveillance is low, there is a greater need for scrutiny by this Court.
125. The Court observes that the present applicant complained of an
interference with his communications both on the basis that, given the
circumstances of his particular case, he had established a reasonable
likelihood of interception and on the basis of the very existence of measures
permitting secret surveillance.
126. The applicant has alleged that the fact that calls were not put
through to him and that he received hoax calls demonstrates a reasonable
likelihood that his communications are being intercepted. The Court
disagrees that such allegations are sufficient to support the applicant's
contention that his communications have been intercepted. Accordingly, it
concludes that the applicant has failed to demonstrate a reasonable
likelihood that there was actual interception in his case.
127. Insofar as the applicant complains about the RIPA regime itself, the
Court observes, first, that the RIPA provisions allow any individual who
alleges interception of his communications to lodge a complaint with an
independent tribunal (see paragraph 75 above), a possibility which was
taken up by the applicant. The IPT concluded that no unlawful, within the
meaning of RIPA, interception had taken place.
128. As to whether a particular risk of surveillance arises in the
applicant's case, the Court notes that under the provisions of RIPA on
internal communications, any person within the United Kingdom may have
his communications intercepted if interception is deemed necessary on one
or more of the grounds listed in section 5(3) (see paragraphs 31 to 32
above). The applicant has alleged that he is at particular risk of having his
communications intercepted as a result of his high-profile murder case, in
which he made allegations of police impropriety (see paragraph 5 above),
and his subsequent campaigning against miscarriages of justice. The Court
observes that neither of these reasons would appear to fall within the