MR JUSTICE BURTON
Approved Judgment
Gillan and Another v Commissioner of Police for the
Metropolis [2004] 3 WLR 1144, at paragraph 50 of the
judgment of the Court given by Lord Woolf LCJ, in relation to
the subject of a valid stop and search order.”
87.
We see no reason to doubt these conclusions, albeit not binding upon us, always
subject to what we have said in paragraph 82 above, in relation to the matters not
then argued, and in particular the absence of Weber:
i)
The Claimants point out that the decision in Gillan, to which the Tribunal
referred in paragraph 38 of its judgment, has been subsequently effectively
overruled by the ECtHR decision in Gillan v United Kingdom [2010] 50
EHRR 45. However, apart from the inappropriateness of the question “why
me?”, which does not appear to us to have been essential to the Tribunal’s
conclusions, the conclusory passage in paragraphs 77 to 79 of the ECtHR’s
judgment in that case does not appear to us to flaw the Tribunal’s conclusion,
nor to lead to a conclusion different from that reached by the Tribunal, namely
the Court’s requirement in paragraph 77 that:
“For domestic law to meet these requirements it must afford a measure of
legal protection against arbitrary interferences by public authorities with
the rights safeguarded by the Convention . . . it would be contrary to the
rule of law . . .for a legal discretion granted to the executive to be expressed
in terms of an unfettered power”,
such as the Court found there to be in Gillan, and the Tribunal did not find
in the British Irish Rights Watch case.
ii)
88.
The Claimants also point out that in Liberty v UK, at paragraph 63, the
ECtHR stated that its “approach to the foreseeability requirement in this field
has . . . evolved since the Commission considered the United Kingdom’s
surveillance scheme in its decision in . . . Christie”. But Christie and
Esbester (see paragraph 40 above), to which the Tribunal also referred, were
both cited without disapproval in Kennedy. We see no reason, particularly as
the Tribunal expressly referred to and relied upon Malone and Leander, to
differ from its conclusion, by reference to foreseeability. Further we see no
reason, bearing in mind the Tribunal’s findings in that case, to conclude that,
in whatever respect the ECtHR was of the view in Liberty v UK that the
Court’s jurisprudence had evolved since Christie, the Tribunal’s conclusions
as to accessibility and foreseeability in that case should be regarded as in any
way flawed.
In Liberty v UK the ECtHR in fact came to consider the same factual complaint as
the Tribunal was addressing in British Irish Rights Watch in 2004, in its judgment
of July 1 2008; but in the event the Court considered the proceedings by reference to
an earlier application, made by reference to the predecessor Act of the RIPA,
namely the Interception of Communications Act 1985 (“IOCA”). Not only was the
Court addressing the earlier statutory regime, but it was also, for the same reason,
addressing a regime which did not have the Code under s.71 of RIPA referred to in
paragraphs 69 and 75-76 above, which had not been brought into force under the old
Act.