LIBERTY AND OTHERS v. THE UNITED KINGDOM JUDGMENT
5
by the Intelligence and Security Committee, an all-party body of nine
Parliamentarians created by the Intelligence Services Act 1994 ...
It is plain that, although in fact the existence of all these safeguards is publicly
known, it is not part of the requirements for accessibility or foreseeability that the
precise details of those safeguards should be published. The Complainants’ Counsel
has pointed out that it appears from the Respondents’ evidence that there are in
existence additional operating procedures, as would be expected given the
requirements that there be the extra safeguards required by s16 of the Act, and the
obligation of the Secretary of State to ensure their existence under s15(1)(b). It is not
suggested by the Complainants that the nature of those operating procedures be
disclosed, but that their existence, i.e. something along the lines of what is in the
Respondents’ evidence, should itself be disclosed in the Code of Practice.
We are unpersuaded by this. First, such a statement in the Code of Practice, namely
as to the existence of such procedures, would in fact take the matter no further than it
already stands by virtue of the words of the statute. But in any event, the existence of
such procedures is only one of the substantial number of safeguards which are known
to exist. Accessibility and foreseeability are satisfied by the knowledge of the criteria
and the knowledge of the existence of those multiple safeguards.
... [F]oreseeability is only expected to a degree that is reasonable in the
circumstances, and the circumstances here are those of national security ... In this case
the legislation is adequate and the guidelines are clear. Foreseeability does not require
that a person who telephones abroad knows that his conversation is going to be
intercepted because of the existence of a valid s. 8(4) warrant. ...
The provisions, in this case the right to intercept and access material covered by a
s.8(4) warrant, and the criteria by reference to which it is exercised, are in our
judgment sufficiently accessible and foreseeable to be in accordance with law. The
parameters in which the discretion to conduct interception is carried on, by reference
to s. 5(3) and subject to the safeguards referred to, are plain from the face of the
statute. In this difficult and perilous area of national security, taking into account both
the necessary narrow approach to Article 8(2) and the fact that the burden is placed
upon the Respondent, we are satisfied that the balance is properly struck.”
B. Relevant domestic law and practice
1. The Interception of Communications Act 1985
16. During the period at issue in this application the relevant legislation
was sections 1-10 of the Interception of Communications Act 1985 (“the
1985 Act”), which came into force on 10 April 1986 and was repealed by
the Regulation of Investigatory Powers Act 2000 (“the 2000 Act”).
17. Pursuant to section 1 of the 1985 Act, a person who intentionally
intercepted a communication in the course of its transmission by post or by
means of a public telecommunications system was guilty of an offence. A
number of exceptions were made, the relevant one being a communication
intercepted pursuant to a warrant issued by the Secretary of State under