LIBERTY AND OTHERS v. THE UNITED KINGDOM JUDGMENT
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were embodied in statutory provisions that were sufficiently certain and
accessible, and in assessing whether the “foreseeability” requirements of
Article 8 § 2 had been met, it was legitimate to take into account the
existence of general safeguards against abuse such as these (the Government
relied on Association for European Integration and Human Rights and
Ekimzhiev v. Bulgaria, no. 62540/00, §§ 77-94, 28 June 2007 and Christie
v. the United Kingdom, no. 21482/93, Commission decision of 27 June
1994). Moreover, the 1985 Act provided that interception was criminal
except where the Secretary of State had issued a warrant and sections 2 and
3(2) set out in very clear terms that, during the relevant period, any person
in the United Kingdom who sent or received any form of
telecommunication outside Britain could in principle have had it intercepted
pursuant to such a warrant. The provisions of primary legislation were,
therefore, sufficient to provide reasonable notice to individuals to the degree
required in this particular context, and provided adequate protection against
arbitrary interference. Article 8 § 2 did not require that the nature of the
“arrangements” made by the Secretary of State under section 6 of the 1985
Act be set out in legislation (see Malone v. the United Kingdom, judgment
of 2 August 1984, Series A no. 82, § 68), and for security reasons it had not
been possible to reveal such information to the public, but the arrangements
had been subject to review by the Commissioners, each of whom had found
them to be satisfactory (see paragraph 33 above).
53. The Government submitted that the section 3(2) warrant regime was
proportionate and “necessary in a democratic society”. Democratic States
faced a growing threat from terrorism, and as communications networks
became more wide-ranging and sophisticated, terrorist organisations had
acquired ever greater scope to operate and co-operate on a trans-national
level. It would be a gross dereliction of the Government’s duty to safeguard
national security and the lives and well-being of its population if it failed to
take steps to gather intelligence that might allow preventative action to be
taken or if it compromised the operational effectiveness of the surveillance
methods available to it. Within the United Kingdom the Government had
extensive powers and resources to investigate individuals and organisations
that might threaten the interests of national security or perpetrate serious
crimes, and it was therefore feasible for the domestic interception regime to
require individual addresses to be identified before interception could take
place. Outside the jurisdiction, however, the ability of the Government to
discover the identity and location of individuals and organisations which
might represent a threat to national security was drastically reduced and a
broader approach was needed. Maintaining operational effectiveness
required not simply that the fact of interception be kept as secret as
appropriate; it was also necessary to maintain a degree of secrecy as regards
the methods by which such interception might be effected, to prevent the
loss of important sources of information.