(9) If the Complainant establishes that any of the conduct complained of
after 2 October 2000 resulted in a breach of his article 8 right, then he is
entitled to have that complaint and claim upheld in relation to that conduct
under s67(2) and s67(4) RIP A.
III. PRINCIPLE OF LEGALITY AND COMMON LAW PRIVACY RIGHTS IN
PUBLIC LAW.
11. The determination of the Tribunal on this point is that the Complainant has failed to
establish that there is in public law a fundamental or basic common law right of
privacy of communications. On this basis it follows that the principle of legality is not
available to the Complainant for the interpretation of the 1985 Act in support of the
complaint of interception with communications pre-2 October 2000.
12. The principal area of contention concerns the existence of a common law right of
privacy in public law. The Complainant submitted that there is such a right, which is
entitled to protection on the same basis as other fundamental rights analogous to and
informed by the Convention rights. He invokes for its protection the principle of
legality, as expounded by Lord Hoffmann in R v. Secretary of State for the Home
Department, ex parte Simms and O'Brien [2002] 2 AC 115 at 131E-G (Simms).
That was a case on freedom of expression between convicted prisoners and journalists and
examination of prisoners' privileged communications. The principle of legality affects
the interpretation of legislation in the context of fundamental or basic