42
KENNEDY v. THE UNITED KINGDOM JUDGMENT
RIPA, supplemented by the Code and the relevant definitions provided in
the Act, was sufficiently clear and precise in setting out the grounds on
which a section 8(1) warrant could be issued. As to the applicant's particular
complaint that the term “national security” lacked clarity, the Government
emphasised that the term was not criticised by the Court in Liberty and
Others when it was considered in the context of RIPA's predecessor, a fact
which was unsurprising given that the term was a frequently-used
legislative concept in the legal systems of many Contracting States and
appeared in Article 8 § 2 of the Convention itself. The Government invited
the Court to follow the Commission in Christie v. the United Kingdom, no.
21482/93, Commission decision of 27 June 1994, in finding that the term
“national security” was sufficiently foreseeable for the purposes of Article
8, noting that the applicant had cited no authority to the contrary. The
Government also contested the applicant's complaint that “serious crime”
was not sufficiently specific and that RIPA failed to clarify the exact
offences for the prevention of which a section 8(1) warrant could be issued.
They pointed out that nothing in Weber and Saravia, cited above, § 27,
supported the proposition that the legislative framework had to refer to the
relevant offences by name in order to comply with the foreseeability
requirement. They concluded that “serious crime”, as defined in the Act,
provided an adequate indication of the circumstances in which interception
could be authorised.
142. Second, as regards the categories of persons liable to have their
telephones tapped, the Government acknowledged that RIPA allowed any
type of communication transmitted over a telecommunications system to be
intercepted. However, the categories of persons liable to have their
telephones tapped were strictly controlled by RIPA. The factors by
reference to which interception was undertaken had to be specifically
identified in the schedule to the warrant. Further, a person would only
become a subject of interception, and a set of premises would only be
named in an interception warrant, if the interception operation was
necessary on one or more of the grounds listed in section 5(3) (see
paragraphs 31 to 32 above). The Government disputed that the Court's
conclusion in Weber and Saravia, cited above, § 97, was at odds with this
approach as, in their submission, that judgment merely approved the
approach taken in the G10 Act without ruling out other possible methods of
satisfying the Article 8 § 2 requirements.
143. Third, RIPA set out strict limits regarding the duration of any
interception activity and the circumstances in which a warrant could be
renewed (see paragraphs 50 to 51 above).
144. Fourth, RIPA, supplemented by the Code, contained detailed
provisions on the procedure to be followed for examining, using and storing
the data obtained and the precautions to be taken when communicating the
data to other parties. Although in principle an intercepting agency could