KENNEDY v. THE UNITED KINGDOM JUDGMENT
41
intercepted data, the Court referred specifically at § 68 of its judgment to the
fact that under RIPA, the Government had published a code of practice
giving details about the operation of the scheme. In the Government's view,
the publication of the Code was a feature by which the RIPA scheme could
be distinguished from its predecessor in a significant and relevant respect.
They also contrasted the finding of the Court in Liberty and Others, § 66, as
regards the former arrangements regarding safeguards under section 6
Interception of Communications Act with the section 15 RIPA
arrangements and the relevant provisions of the Code.
139. On the question whether any interference was in accordance with
the law, the Government considered, first, that the statutory provisions of
RIPA provided a sufficient basis in domestic law for any interference. They
noted that the applicant did not appear to dispute this. As to whether the law
was accessible, the Government pointed out that both RIPA and the Code
were public accessible. They concluded that the accessibility requirement
was satisfied, again noting the absence of any dispute on the matter from the
applicant.
140. Regarding foreseeability, the Government highlighted at the outset
the special context of secret surveillance. Referring to, inter alia, Weber and
Saravia, cited above, § 93, the Government emphasised that foreseeability
could not mean that an individual should be able to foresee when the
authorities were likely to intercept his communications so that he could
adapt his conduct accordingly. However, they agreed that there needed to be
clear, detailed rules on interception, as outlined in § 95 of the Court's
judgment in Weber and Saravia to guard against the risk of arbitrary
exercise of secret surveillance powers. The Court had recently clarified in
Liberty and Others, cited above, §§ 67 to 69, that not every provision
regulating secret surveillance had to be set out in primary legislation. The
test was whether there was a sufficient indication of the safeguards in a
form accessible to the public in order to avoid abuses of power (citing
Weber and Saravia, § 95). The Government accordingly contended that
account should be taken of all relevant circumstances, including the nature,
scope and duration of possible measures, the grounds required for ordering
them, the authorities competent to permit, carry out and supervise them, and
the remedies provided by national law (citing Association for European
Integration and Human Rights and Ekimdzhiev v. Bulgaria, cited above,
§ 77). They also argued that the Court should consider any evidence as to
the actual operation of the warrant system and whether the system appeared
to be working properly or was in fact subject to abuse (referring to
Association for European Integration and Human Rights and Ekimdzhiev,
§§ 92 to 93).
141. Addressing each of the individual safeguards set out in Weber and
Saravia in turn, the Government contended, first, as regards the nature of
offences which could give rise to an interception order, that section 5(3)