KENNEDY v. THE UNITED KINGDOM JUDGMENT
3
B. Domestic proceedings
8. On 10 July 2000 the applicant made subject access requests to MI5
and GCHQ (the United Kingdom's intelligence agencies responsible for
national security) under the Data Protection Act 1998 (“DPA” – see
paragraphs 21 to 22 below). The object of the requests was to discover
whether information about him was being processed by the agencies and to
obtain access to the content of the information. Both requests were refused
on the basis that the information requested was exempt from the disclosure
requirements of the 1998 Act on the grounds of national security under
certificates issued by the Secretary of State on 22 July 2000 (MI5) and
30 July 2000 (GCHQ).
9. On 6 July 2001 the applicant lodged two complaints with the
Investigatory Powers Tribunal (“IPT”). First, the applicant complained
under sections 65(2)(b) and 65(4) of the Regulation of Investigatory Powers
Act 2000 (“RIPA” – see paragraphs 25 to 80 below) that his
communications were being intercepted in “challengeable circumstances”,
within the meaning of section 65(7) RIPA (i.e. under an interception
warrant or in circumstances in which there ought to have been an
interception warrant or where consideration ought to have been given to
obtaining an interception warrant). Second, the applicant complained under
sections 6(1) and 7(1) of the Human Rights Act 1998 (“HRA”) and section
65(2)(a) RIPA that there was an unlawful interference with his rights under
Article 8 of the Convention.
10. The applicant's Grounds of Claim and Complaint outlined the
grounds for bringing the proceedings as follows:
“4(a) That the authorities' conduct was, and is, incompatible with his rights under
Article 8 of the Convention and a violation of equivalent rights of his at common law.
Such conduct is unlawful as a result of HRA s. 6(1) and forms the basis for a
complaint under RIPA s. 65.
(b) To the extent any such conduct purports to have the authority of a warrant issued
or renewed under RIPA Part I or the corresponding predecessor provisions of the
Interception of Communications Act 1985 (“IOCA”), the issue and renewal of that
warrant, as well as the conduct itself, has at all times lacked the necessary
justification, whether under the express provisions of RIPA Part I (or IOCA), Article
8(2) of the Convention, or the general law.
(c) Moreover the authorities' conduct was and is unlawful because in breach of the
requirements of the Data Protection Act 1998 (“DPA”). Conduct in breach of those
requirements takes place in challengeable circumstances under RIPA s. 65(4) and (7)
and is also incompatible with the Complainant's rights under Article 8 of the
Convention.
5. In addition, the Complainant relies in these proceedings on his right to a fair
hearing under Article 6(1) of the Convention. In light of that right, the Complainant