40
KENNEDY v. THE UNITED KINGDOM JUDGMENT
data and the circumstances in which data could or should be destroyed
(citing Weber and Saravia, cited above, § 95).
136. He argued in particular that in Weber and Saravia, the law under
consideration set out the precise offences the prevention and detection of
which could give rise to an interception order, which he alleged was not the
case with RIPA. He pointed to the opinion of his expert, Dr Goold, that the
definition of “serious crime” in section 81(2)(b) RIPA (see paragraph 34
above) was excessively broad and did not refer to any specific offences by
name, and Dr Goold's conclusion that it could not be said that the grounds
for issuing a section 8(1) warrant, as set out in section 5(3) RIPA, were
sufficiently clear so as to enable an individual to predict what sorts of
conduct might give rise to secret surveillance. He further considered that
there was no information as to how the categories of persons liable to have
their telephones tapped were “strictly controlled”, as the Government
suggested (see paragraph 142 below).
ii. The Government
137. The Government submitted that any interference which may have
arisen in the present case satisfied the requirements of Article 8 § 2. The
Government emphasised the duty of democratic governments to uphold the
criminal law and protect citizens from terrorist threats and organised crime.
In order to discharge this duty, the power to intercept the communications
of specific targets was necessary. They pointed to the Commissioner's
consistent conclusions that the interception powers under RIPA were an
invaluable weapon for the protection of national security and the fight
against organised crime (see paragraphs 64 and 72 above). Further, in order
for interception to yield useful intelligence, the fact of the interception, as
well as the methods by which it could be effected, had to be kept secret. If
possible targets were able to gain insight into sensitive interception
techniques and capabilities, then they would be able to take steps to
undermine the usefulness of any intelligence gathered against them. The
Government explained that they had had experience of information about
surveillance techniques being put in the public domain, which had led
directly to the loss of important sources of intelligence. They insisted that
their policy of “neither confirm nor deny” was important to ensure the
overall effectiveness of surveillance operations.
138. Generally, regarding the applicant's reliance on the Court's
judgment in Liberty and Others, cited above, the Government emphasised
that that case concerned the Interception of Communications Act 1985, and
not RIPA. Accordingly, they argued, the Court had not given a view as to
whether it considered that the provisions of RIPA satisfied the requirements
of Article 8. In finding a violation of Article 8 in Liberty and Others as a
result of the failure of the Government to provide any public indication of
the procedure for selecting for examination, sharing, storing and destroying