MR JUSTICE BURTON
Approved Judgment
89.
The somewhat peculiar circumstances were thus that the Court was considering the
case without the benefit of the Code, that the Respondent Government was having
to justify the statutory measures without, and antedating, the Code; the finding was,
perhaps not surprisingly, that, without the Code, the interference with the
applicant’s rights under Article 8 was not therefore in accordance with the law. In
paragraph 65 of the Liberty v UK judgment the Court pointed out that IOCA
conferred a wide discretion, and in paragraph 66 that the arrangements, which the
Government described as applying to the processes of selection for examination,
dissemination and storage of intercepted material, were not contained in legislation
or otherwise made available to the public. The Court concluded:
“68 . . . In the United Kingdom, extensive extracts from the
Code of Practice issued under s.71 of the 2000 Act are now in
the public domain, which suggests that it is possible for the
state to make public certain details about the operation of a
scheme of external surveillance without compromising national
security.”
90.
This was thus a decision in relation to the s.8(4) warrant, but made on the basis set
out above, which clearly sets out, at the very least, a strong inference that with the
Code the situation would have been different. On the other hand, once again, of the
Four Questions set out before us, the first, second and fourth were not before them,
although the third plainly was, since Weber was considered.
91.
The ECtHR did consider RIPA in Kennedy. This was an application by Mr
Kennedy to the Court arising out of the dismissal by this Tribunal of a complaint by
him relating to a s.8(1) warrant. Although the Court plainly did not therefore
consider s.8(4) in any detail, it did consider those parts of the Statute and of the
Code which apply to both warrants, and the statutory scheme, including oversight
by the Commissioner and this Tribunal. It concluded as follows in paragraph 169:
“In the circumstances, the Court considers that the domestic
law on interception of internal communications together with
the clarifications brought by the publication of the Code
indicate with sufficient clarity the procedures for the
authorisation and processing of interception warrants as well
as the processing, communicating and destruction of intercept
material collected. The Court further observes that there is no
evidence of any significant shortcomings in the application and
operation of the surveillance regime. On the contrary, the
various reports of the Commissioner have highlighted the
diligence with which the authorities implement RIPA and
correct any technical or human errors which accidentally
occur. Having regard to the safeguards against abuse in the
procedures as well as the more general safeguards offered by
the supervision of the Commissioner and the review of the IPT,
the impugned surveillance measures, insofar as they may have
been applied to the applicant in the circumstances outlined in
the present case, are justified under Article 8(2).”