KENNEDY v. THE UNITED KINGDOM JUDGMENT
47
taking place. Accordingly, in its examination of the justification for the
interference under Article 8 § 2, the Court is required to examine the
proportionality of the RIPA legislation itself and the safeguards built into
the system allowing for secret surveillance, rather than the proportionality
of any specific measures taken in respect of the applicant. In the
circumstances, the lawfulness of the interference is closely related to the
question whether the “necessity” test has been complied with in respect of
the RIPA regime and it is therefore appropriate for the Court to address
jointly the “in accordance with the law” and “necessity” requirements (see
Kvasnica, cited above, § 84). Further, the Court considers it clear that the
surveillance measures permitted by RIPA pursue the legitimate aims of the
protection of national security, the prevention of crime and the protection of
the economic well-being of the country. This was not disputed by the
parties.
156. In order to assess whether the RIPA provisions meet the
foreseeability requirement, the Court must first examine whether the
provisions of the Code can be taken into account insofar as they supplement
and further explain the relevant legislative provisions. In this regard, the
Court refers to its finding in Silver and Others v. the United Kingdom,
25 March 1983, §§ 88 to 89, Series A no. 61 that administrative orders and
instructions concerning the scheme for screening prisoners' letters
established a practice which had to be followed save in exceptional
circumstances and that, as a consequence, although they did not themselves
have the force of law, to the extent to which those concerned were made
sufficiently aware of their contents they could be taken into account in
assessing whether the criterion of foreseeability was satisfied in the
application of the Prison Rules.
157. In the present case, the Court notes, first, that the Code is a public
document and is available on the Internet (see paragraphs 26 and 28 above).
Prior to its entry into force, it was laid before Parliament and approved by
both Houses (see paragraph 26 above). Those exercising duties relating to
interception of communications must have regard to its provisions and the
provisions of the Code may be taken into account by courts and tribunals
(see paragraph 27 above). In light of these considerations, the Court finds
that the provisions of the Code can be taken into account in assessing the
foreseeability of the RIPA regime.
158. The Court will therefore examine the RIPA regime with reference
to each of the safeguards and the guarantees against abuse outlined in Weber
and Saravia (see paragraphs 152 and 153 above) and, where relevant, to its
findings in respect of the previous legislation at issue in Liberty and Others,
cited above.
159. As to the nature of the offences, the Court emphasises that the
condition of foreseeability does not require States to set out exhaustively by
name the specific offences which may give rise to interception. However,