KENNEDY v. THE UNITED KINGDOM JUDGMENT
7
24. Under section 4(2), if a court is satisfied that a provision of primary
legislation is incompatible with a Convention right, it may make a
declaration of that incompatibility. “Court”, in section 4, is defined as
meaning the Supreme Court; the Judicial Committee of the Privy Council;
the Court Martial Appeal Court; in Scotland, the High Court of Justiciary
(sitting otherwise than as a trial court) or the Court of Session; or in
England and Wales or Northern Ireland, the High Court or the Court of
Appeal. Section 4(6) clarifies that a declaration of incompatibility does not
affect the validity, continuing operation or enforcement of the legislative
provision in question and is not binding on the parties to the proceedings in
which it is made.
3. Interception warrants
25. Since 2 October 2000, the interception of communications has been
regulated by the Regulation of Investigatory Powers Act 2000 (“RIPA”).
The explanatory notes which accompany RIPA explain that the main
purpose of RIPA is to ensure that investigatory powers are exercised in
accordance with human rights.
26. Section 71 RIPA provides for the adoption of codes of practice by
the Secretary of State in relation to the exercise and performance of his
powers and duties under the Act. Draft codes of practice must be laid before
Parliament and are public documents. They can only enter into force in
accordance with an order of the Secretary of State. The Secretary of State
can only make such an order if a draft of the order has been laid before
Parliament and approved by a resolution of each House.
27. Under section 72(1) RIPA, a person exercising or performing any
power or duty relating to interception of communications must have regard
to the relevant provisions of a code of practice. The provisions of a code of
practice may, in appropriate circumstances, be taken into account by courts
and tribunals under section 72(4) RIPA.
28. The Interception of Communications Code of Practice (“the Code”)
entered into force on 1 July 2002. It is now available on the Home Office
website.
a. The issue of an interception warrant
29. Interception is permitted in several cases, exhaustively listed in
section 1(5) RIPA. Section 1(5)(b), the relevant provision in the present
case, provides that interception is lawful if authorised by an interception
warrant. Any unlawful interception is a criminal offence under section 1(1).
30. Section 2(2) defines “interception” as follows:
“For the purposes of this Act, but subject to the following provisions of this section,
a person intercepts a communication in the course of its transmission by means of a
telecommunication system if, and only if, he–