44
KENNEDY v. THE UNITED KINGDOM JUDGMENT
to the Commissioner's 2002 and 2004 reports (see paragraphs 68 to 69
above).
146. In conclusion, the Government contended that in light of the detail
in the legislation and the applicable code, the RIPA regime satisfied the
requirement of lawfulness.
147. The Government also insisted that any interference pursued a
legitimate aim. The Government emphatically denied, in this regard, the
applicant's allegation that interception was being used to intimidate him and
undermine his business activities. The three relevant objectives set out in
section 5(3) RIPA, namely safeguarding national security, preventing or
detecting serious crime and safeguarding the economic well-being of the
United Kingdom, were all legitimate aims for the purposes of Article 8(2).
148. As to proportionality, the Government pointed to the fact that the
Court had already accepted that secret surveillance could be necessary in a
democratic society (see Klass and Others, cited above, § 48) and argued that
the surveillance regime in RIPA was necessary and proportionate. The
Government further argued that States enjoyed a fairly wide margin of
appreciation when legislating in this field (citing Weber and Saravia,
§ 106). They reiterated that the protection of national security in particular
was a heavy political responsibility affecting the whole population.
Decisions in this area accordingly required a democratic legitimacy which
could not be provided by the Court. This had been implicitly recognised by
the Court in its Klass and Others judgment, cited above, § 49.
149. The Government accepted that in order to demonstrate respect for
Article 8(2), there had to be adequate and effective guarantees against abuse
of power. They reiterated that the assessment of whether such guarantees
were present had to be made in light of all the circumstances of the case. In
respect of the surveillance regime applicable in the United Kingdom, the
Government emphasised that any interception without lawful authority was
a criminal offence under section 1 RIPA (see paragraph 29 above); that the
Secretary of State personally issued and modified warrants (see
paragraph 38 above); and that guidance was publicly available in the form
of the Code. They further pointed to the additional safeguards available in
the form of the section 15 safeguards, the oversight of the Commissioner
and the jurisdiction of the IPT. They concluded that the RIPA regime
contained adequate and effective guarantees against abuse. The
involvement of Secretaries of State in the issuing of an interception warrant
provided a real and practical safeguard in the system, as demonstrated by
the findings of the Commissioner as to the care and attention they
demonstrated in their warrantry work (see paragraphs 62, 67 and 71 above).
Further, it was significant that none of the Commissioners' reports referred
to any deliberate breach of the RIPA provisions or any unlawful use of
interception powers to intimidate a person. Any errors or breaches which
had arisen had been the result of technical or human error and had been