KENNEDY v. THE UNITED KINGDOM JUDGMENT
39
to address the flaws identified in that case. He concluded that any
interference therefore automatically failed to meet the requirement that it
must be in accordance with the law and relied in this regard on the
conclusions of a report by a surveillance law expert instructed by him, Dr
Goold, appended to his submissions. He further highlighted the conclusion
of the Court in Liberty and Others, cited above, § 68, that the fact that
extracts of the code of practice adopted under section 71 RIPA were in the
public domain suggested that it was possible for a State to make public
certain details about the operation of a scheme for external surveillance
without compromising national security.
133. The applicant argued that the Court's decisions in Valenzuela
Contreras v. Spain, 30 July 1998, Reports of Judgments and Decisions
1998-V; Huvig v. France, 24 April 1990, Series A no. 176-B; Kruslin
v. France, 24 April 1990, Series A no. 176-A; Amann v. Switzerland [GC],
no. 27798/95, ECHR 2000-II; Al-Nashif v. Bulgaria, no. 50963/99, 20 June
2002; and Rotaru v. Romania [GC], no. 28341/95, ECHR 2000-V had
expanded on the issue of “foreseeability” and indicated a departure from the
narrower scope of earlier decisions which tolerated the restrictive extent to
which national security had imposed blanket secrecy on the publication of
surveillance procedures. This broader approach had been confirmed by the
Court's recent ruling in Liberty and Others, cited above. The applicant
argued that the RIPA scheme remained “unnecessarily opaque” and that
further details about the operation, beyond those currently included in the
Code, should be made available in order to comply with the Convention
requirements regarding clarity and precision.
134. As to the safeguards and the arrangements put in place by the
Secretary of State under section 15 RIPA, the applicant contended that there
was a circularity in the fact that the person responsible for issuing warrants
was also responsible for the establishment of the safeguards. He referred to
the Court's observation in Liberty and Others, cited above, § 66, that details
of the arrangements were neither in the legislation nor otherwise in the
public domain. As regards the role of the Commissioner, the applicant
argued that, as the Court found in Liberty and Others, cited above, § 67, the
existence of the Commissioner did not contribute towards the accessibility
and clarity of the arrangements under section 15 RIPA as he was unable to
reveal what the arrangements were.
135. More generally, the applicant alleged that the Government had
failed to address properly the safeguards available to prevent abuse of
power. He argued that the legislation failed to identify the nature of the
offences which could give rise to an interception order, to define persons
liable to have their telephones tapped, to set limits on the duration of
telephone tapping and to explain the procedure to be followed in examining
and storing data obtained, the precautions to be taken in communicating the