LIBERTY AND OTHERS v. THE UNITED KINGDOM JUDGMENT
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section 3(2) the 1985 Act, the authorities were authorised to capture
communications contained within the scope of a warrant issued by the
Secretary of State and to listen to and examine communications falling
within the terms of a certificate, also issued by the Secretary of State (see
paragraphs 23-24 above). Under section 6 of the 1985 Act arrangements had
to be made regulating the disclosure, copying and storage of intercepted
material (see paragraph 27 above). The Court considers that the existence of
these powers, particularly those permitting the examination, use and storage
of intercepted communications constituted an interference with the Article 8
rights of the applicants, since they were persons to whom these powers
might have been applied (see Weber and Saravia, cited above, §§ 78-79).
2. Whether the interference was justified
58. Such an interference is justified by the terms of paragraph 2 of
Article 8 only if it is “in accordance with the law”, pursues one or more of
the legitimate aims referred to in paragraph 2 and is “necessary in a
democratic society” in order to achieve the aim or aims (see Weber and
Saravia, cited above, § 80).
3. Whether the interference was “in accordance with the law”
a. General principles
59. The expression “in accordance with the law” under Article 8 § 2
requires, first, that the impugned measure should have some basis in
domestic law; it also refers to the quality of the law in question, requiring
that it should be compatible with the rule of law and accessible to the person
concerned, who must, moreover, be able to foresee its consequences for him
(see, among other authorities, Kruslin v. France, judgment of
24 April 1990, Series A no. 176-A, § 27; Huvig v. France, judgment of
24 April 1990, Series A no. 176-B, § 26; Lambert v. France, judgment of
24 August 1998, Reports of Judgments and Decisions 1998-V, § 23; Perry
v. the United Kingdom, no. 63737/00, § 45, ECHR 2003-IX; Dumitru
Popescu v. Romania (No. 2), no. 71525/01, § 61, 26 April 2007).
60. It is not in dispute that the interference in question had a legal basis
in sections 1-10 of the 1985 Act (see paragraphs 16-27 above). The
applicants, however, contended that this law was not sufficiently detailed
and precise to meet the “foreseeability” requirement of Article 8(2), given in
particular that the nature of the “arrangements” made under section 6(1)(b)
was not accessible to the public. The Government responded, relying on
paragraph 68 of Malone (cited above), that although the scope of the
executive’s discretion to carry out surveillance had to be indicated in
legislation, “the detailed procedures and conditions to be observed do not
necessarily have to be incorporated in rules of substantive law”.