84.
If, however, the determination of the complaints is only by reference to the
outcome of the conduct complained of, the outcome in this case is that the
Complainants’ Article 8 rights were in fact breached for the reasons already
given.
VIII. Article 8 ECHR
85.
In the absence of a valid authorisation under RIPA the Complainants contend
that the Council, as a public authority, has interfered with the Complainants’
rights under Article 8 of the Convention. It is unlawful for a public authority
to act in a way which is incompatible with a Convention right.
86.
Article 8 provides that
“1. Everyone has the right to respect for his private and family
life, his home and his correspondence.
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the
law and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others.”
87.
On the basis of the facts found by the Tribunal the Complainants contend that
the directed surveillance by the Council was planned, clandestine and
involved the gathering and recording of what was observed. It was not
necessary in pursuit of the legitimate aim of the prevention or detection of
crime nor was it proportionate. There was no justification for it.
88.
The Council’s position is that the directed surveillance was not unlawful under
English law; that the authorisation of it, even if unlawful, did not of itself
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