Judgment Approved by the court for handing down.
Davis & Ors v SSHD
73.
We have already noted that it has not been (and could not sensibly be) argued that
data protection falls outside the proper scope of EU law. Mr Eadie, however, placed
reliance on the jurisprudence of the European Court of Human Rights (ECtHR),
which he submitted is required to be applied under EU law and which has approved
the UK’s regime for access to communications data under RIPA.
74.
Mr Eadie’s starting point was Recital (2) to the e-Privacy Directive, which states:“This Directive seeks to respect the fundamental rights and
observes the principles recognised in particular by the Charter
of Fundamental Rights of the European Union. In particular,
this Directive seeks to ensure full respect for the rights set out
in Article 7 and 8 of that Charter.”
75.
Clearly Article 7 of the Charter corresponds to Article 8 of the ECHR, and ECtHR
jurisprudence is therefore directly material in interpreting it. Mr Eadie cited a number
of cases from the ECtHR which concerned telephone tapping, retention of data or
access to communications, starting with Malone v. UK (1985) 7 EHRR 14. As is the
custom in ECtHR judgments, subsequent cases restate the applicable principles; so it
is not necessary to refer in this judgment to all of them.
76.
The most recent is the decision of a Chamber of the ECtHR in Kennedy v. UK (2011)
52 EHRR 4. The claimant had been convicted (he asserted wrongly) of manslaughter.
Following his release from prison after serving his sentence, he had involved himself
in campaigning against miscarriages of justice. The case before the ECtHR concerned
the lawfulness of the use of the RIPA regime to intercept his communications. The
Act required all warrants for such interception to have been issued (or, in cases of
urgency, authorised) by the Secretary of State personally.
77.
In paragraphs 151 to 154 the Court set out the relevant principles:“151. The requirement that any interference must be “in
accordance with the law” under Article 8 § 2 will only be met
where three conditions are satisfied. First, the impugned
measure must have some basis in domestic law. Second, the
domestic law must be compatible with the rule of law and
accessible to the person concerned. Third, the person affected
must be able to foresee the consequences of the domestic law
for him (see, among many other authorities, Rotaru v.
Romania, cited above, § 52; Liberty and Others, cited above, §
59; and Iordachi and Others, cited above, § 37).
152. The Court has held on several occasions that the reference
to “foreseeability” in the context of interception of
communications cannot be the same as in many other fields
(see Malone, cited above, § 67; Leander v. Sweden, 26 March
1987, § 51, Series A no. 116; Association for European
Integration, cited above, § 79; and Al-Nashif, cited above, §
121). In its admissibility decision in Weber and Saravia, cited
above, §§ 93 to 95, the Court summarised its case-law on the
requirement of legal “foreseeability” in this field: