CHAPTER 5: LEGAL CONSTRAINTS
two bodies, a Parliamentary Control Commission and the G10 Commission, both of
which were independent of the authorities carrying out the surveillance and contained
members of the opposition parties.54 The court reviewed all aspects of the
authorisation and oversight regime and concluded it provided sufficient protections to
democratic freedoms.
5.42.
The current system of ministerial authorisation for individual warrants does not render
the system non-compliant with Article 8, in the opinion of the ECtHR. In Kennedy v
UK, the ECtHR explained in detail the oversight that is currently provided by the IOCC,
the ISC and the IPT.55 The court did not set out a standard of oversight and then ask
whether or not the current framework meets that test. Rather the strength of the
oversight regime was one factor that it took into account when determining whether
the RIPA s8(1) framework was a necessary and proportionate and interference with
the right to privacy; and the absence of judicial involvement during the authorisation
or implementation stage was not fatal.
5.43.
It should be noted that the Kennedy case concerned individual warrants rather than
bulk collection.
Confidential communications
5.44.
Certain kinds of communication deserve particular protection, and need to be
approached with especial care.
5.45.
First, communications between lawyers and their clients are protected by legal
professional privilege [LPP].56 Similar or equivalent provisions exist in the laws of
most other European countries.57 The ECtHR has held that, where a search warrant
is executed at a lawyer’s office, “special procedural safeguards, such as the presence
of an independent observer” should be put in place to avoid an unwarranted breach
of professional confidence.58
5.46.
The same principles will apply in cases concerning interception of material subject to
LPP. The precise scope of the additional and further protections that should apply
when privileged documents are being intercepted has not been fully argued in any
case before the ECtHR.59 However, it is clear that such protections are required:
(a)
54
55
56
57
58
59
In Kopp v Switzerland the Swiss authorities had tapped the telephones of a law
firm, as part of a wider investigation into corruption. The ECtHR held that was
not in accordance with the law, because Swiss law failed clearly and adequately
They were held to be sufficiently independent “to give an objective ruling”, Klass v Germany, para 56.
Kennedy v UK, paras 166-9.
Whether communications data (recording, for example, the fact that a lawyer spoke to a client or a
potential witness) may be subject to LPP is not entirely straightforward: see JSC Bank v Ablyazov
Bank [2012] EWHC 1252 Comm; C. Hollander, Documentary Evidence (12th edn., 2015) para 17-29.
The fact of such communications is presumably confidential, in any event, and likely to be of special
sensitivity: IOCCO inquiry into the use of RIPA Part I Chapter 2 to identify journalistic sources,
(February 2015), para 6.16.
R (Prudential) v Special Commissioner of Income Tax [2013] UKSC 13, paras 116 and 136.
Niemietz v Germany, para 37. See also Stefanov v Bulgaria, para 38.
As noted at 5.68(b) below, the CJEU, when determining that the Data Retention Directive was not lawful,
also noted that it made no provision for communications that are subject to professional secrecy (Digital
Rights Ireland, at para 58).
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