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Cite as: [2008] ECHR 1575

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20 November 2008

FOURTH SECTION

Application no. 26839/05
by Malcolm KENNEDY
against the United Kingdom
lodged on 12 July 2005

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Malcolm Kennedy, is a British national who was born in 1946 and lives in London. He is represented before the Court by the Aire Centre, a human rights organisation based in London.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

Background facts

On 23 December 1990, the applicant was arrested for drunkenness and taken to Hammersmith Police Station. He was held overnight in a cell shared by another detainee, Patrick Quinn. The next day, Mr Quinn was found dead with severe injuries. The applicant was charged with his murder. The applicant alleged that the police had framed him for the murder in order to cover up their own wrongdoing. In September 1991, the applicant was found guilty of the murder of his cellmate and sentenced to life imprisonment. In February 1993, his conviction was overturned on appeal. At a first retrial, one of the police officers, a key prosecution witness, failed to appear. He was subsequently declared mentally unstable and was withdrawn from the proceedings. Following a second retrial, the applicant was convicted in 1994 of manslaughter and sentenced to nine years’ imprisonment. The case was controversial in the United Kingdom on account of missing and conflicting police evidence which led some – including a number of Members of Parliament – to question the safety of the applicant’s conviction.

In 1996, the applicant was released from prison. He started a removal business called Small Moves, undertaking small moves and van hire in London. Although his business did well at the beginning, he subsequently began to experience interference with his business telephone calls. He alleged that local calls to his telephone were being barred and that he was receiving a number of time-wasting spoof calls. The applicant suspected that this was because his mail, telephone and email were being intercepted. As a result of the interference, the applicant’s business began to suffer.

The applicant believed that the interception of his communications was directly linked to his high profile case and his subsequent involvement in campaigning against miscarriages of justice. He alleged that police and security services were continually and unlawfully renewing an interception warrant – originally authorised for the criminal proceedings against him – in order to intimidate him and undermine his business activities.

B. Domestic proceeding

The applicant has tried repeatedly since 1999 to find out the reasons for the interception and put a stop to it, without success.

On 10 July 2000 the applicant made subject access requests to MI5 and GCHQ (the United Kingdom’s intelligence agencies responsible for national security) under the Data Protection Act 1998 (“DPA”). The object of the requests was to discover whether information about him was being processed by the agencies and to obtain access to the content of the information. Both requests were refused on the basis that the information requested was exempt from the disclosure requirements of the 2000 Act on the grounds of national security under certificates issued by the Secretary of State on 22 July 2000 (MI5) and 30 July 2000 (GCHQ).

On 6 July 2001 the applicant lodged two complaints with the Investigatory Powers Tribunal (“IPT”) requesting it to examine his allegations. First, the applicant complained under sections 65(2)(b) and 65(4) of the Regulation of Investigatory Powers Act 2000 (“RIPA”) that his communications were intercepted in “challengeable circumstances”, within the meaning of section 65(7) RIPA (i.e. under an interception warrant or in circumstances in which there ought to have been an interception warrant or where consideration ought to have been given to obtaining an interception warrant). Second, the applicant complained under sections 6(1) and 7(1) of the Human Rights Act 1998 (“HRA”) and section 65(2)(a) RIPA that there was an unlawful interference with his rights under Article 8 of the Convention.

During preliminary procedural hearings, the applicant challenged the rules of the IPT as being incompatible with the fair hearing requirements of Article 6 § 1 of the Convention and the procedural requirements associated with Article 8 and Article 10 of the Convention. He requested directions regarding conduct of the proceedings in order to ensure the protection of his Convention rights. In particular, he requested that his argument and evidence be presented at an oral hearing; that all hearings be conducted in public; that there be mutual disclosure and inspection between the parties of all witness statements and evidence upon which parties sought to rely and exchange of skeleton arguments in relation to planned legal submissions; that evidence of each party be heard in the presence of the other party or their legal representatives, with oral evidence being open to cross-examination by the other party; that any opinion received from a Commissioner be disclosed to the parties, who have the opportunity to make oral representations in light of it; that each party be able to apply for a derogation from any of the above in relation to a particular piece of evidence; and that, following its final determination, the IPT state its findings and give reasons for its conclusions on each relevant issue.

On 23 January 2003 the IPT issued a Ruling on Preliminary Issues of Law. It found that Article 6 § 1 applied to both complaints as they concerned the determination of the applicant’s civil rights by the IPT. It considered that preliminary issues should be heard in public and that reasons for legal rulings should be made public. However, it concluded that the IPT Rules were compatible with Articles 6, 8 and 10 of the Convention and refused to make any of the other directions sought.

On 17 January 2005, the IPT notified the applicant that no determination had been made in his favour in respect of his two complaints. There is no right of appeal from a decision of the IPT.

B. Relevant domestic law and practice

1. Subject access requests under the Data Protection Act 1998

Section 7(1) of the DPA grants individuals the right to request details of any information about them held by persons or organisations which record, store, or process personal data.

Under section 28 DPA, personal data is exempt from disclosure under section 7(1) if an exemption is required for the purpose of safeguarding national security.

2. The Human Rights Act 1998

The HRA incorporates the Convention into United Kingdom law. It allows proceedings to be brought before the courts where a breach of Convention rights is alleged. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right, except where it is constrained to act in that way as a result of primary legislation which cannot be interpreted so as to be compatible with Convention rights. Under section 7(1), a person claiming that a public authority has acted unlawfully under section 6(1) may bring proceedings against it in the appropriate court or rely on the Convention right in any legal proceedings.

3. Interception of communication

a. The RIPA provisions

Since 2 October 2000, the interception of communications has been regulated by RIPA. The explanatory notes which accompany RIPA explain that the main purpose of RIPA is to ensure that investigatory powers are used in accordance with human rights.

Section 1 RIPA provides that interception is lawful if authorised by an interception warrant. Section 5(1) allows the Secretary of State to issue a warrant authorising the interception of the communications described in the warrant. Under section 5(2), no warrant for interception of internal communications (i.e. communications within the United Kingdom) shall be issued unless the Secretary of State believes, inter alia:

“(a) that the warrant is necessary on grounds falling within subsection (3); and

(b) that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.

(3) Subject to the following provisions of this section, a warrant is necessary on grounds falling within this subsection if it is necessary—

(a) in the interests of national security;

(b) for the purpose of preventing or detecting serious crime; [or]

Section 81(2) defines “serious crime” as crime which satisfies one of the following criteria:

“(a) that the offence or one of the offences that is or would be constituted by the conduct is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more;

(b) that the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose.”

The term “national security” is not defined in RIPA. However, it has been clarified by the Commissioner appointed under RIPA’s predecessor, the Interception of Communications Act 1985 Act, who, in his 1986 report, stated that he had adopted the following definition: activities “which threaten the safety or well-being of the State, and which are intended to undermine or overthrow Parliamentary democracy by political, industrial or violent means”.

In making his assessment of the necessity of the measure, the Secretary of State must consider whether the information sought under the warrant could reasonably be obtained by other means.

Section 8 sets out requirements as to the contents of an interception warrant which identify the communications to be intercepted:

“(1) An interception warrant must name or describe either—

(a) one person as the interception subject; or

(b) a single set of premises as the premises in relation to which the interception to which the warrant relates is to take place.

(2) The provisions of an interception warrant describing communications the interception of which is authorised or required by the warrant must comprise one or more schedules setting out the addresses, numbers, apparatus or other factors, or combination of factors, that are to be used for identifying the communications that may be or are to be intercepted.

(3) Any factor or combination of factors set out in accordance with subsection (2) must be one that identifies communications which are likely to be or to include—

(a) communications from, or intended for, the person named or described in the warrant in accordance with subsection (1); or

(b) communications originating on, or intended for transmission to, the premises so named or described.”

Section 15 RIPA is entitled “Restrictions on use of intercepted material etc.” and provides, insofar as relevant to internal communications, as follows:

“(1) ... it shall be the duty of the Secretary of State to ensure, in relation to all interception warrants, that such arrangements are in force as he considers necessary for securing—

(a) that the requirements of subsections (2) and (3) are satisfied in relation to the intercepted material and any related communications data;

...

(2) The requirements of this subsection are satisfied in relation to the intercepted material and any related communications data if each of the following—

(a) the number of persons to whom any of the material or data is disclosed or otherwise made available,

(b) the extent to which any of the material or data is disclosed or otherwise made available,

(d) the number of copies that are made,

is limited to the minimum that is necessary for the authorised purposes.

(3) The requirements of this subsection are satisfied in relation to the intercepted material and any related communications data if each copy made of any of the material or data (if not destroyed earlier) is destroyed as soon as there are no longer any grounds for retaining it as necessary for any of the authorised purposes.

(4) For the purposes of this section something is necessary for the authorised purposes if, and only if—

(a) it continues to be, or is likely to become, necessary as mentioned in section 5(3);

...

(5) The arrangements for the time being in force under this section for securing that the requirements of subsection (2) are satisfied in relation to the intercepted material or any related communications data must include such arrangements as the Secretary of State considers necessary for securing that every copy of the material or data that is made is stored, for so long as it is retained, in a secure manner...”

Section 9(1)(a) provides that an interception warrant for internal communications ceases to have effect: (i) in an urgent case where the warrant has been issued by a senior official and has not yet been renewed, five working days following the warrant’s issue; (ii) in the case of a warrant already renewed by the Secretary of State which contains a statement that the renewal is believed to be necessary in the interests of national security, six months after the date of the warrant’s renewal; or (iii) in all other cases, three months after the date of the warrant’s issue or, in the case of a warrant that has been renewed, of its latest renewal. Section 9(1)(b) provides that an interception warrant may be renewed by the Secretary of State at any time before its expiry where he believes that the warrant continues to be necessary on grounds falling within section 5(3). The Secretary of State is required under Section 9(3) to cancel an interception warrant if he is satisfied that the warrant is no longer necessary on grounds falling within section 5(3).

b. The Interception of Communications Code of Practice

Section 71 RIPA provides for the adoption of codes of practice by the Secretary of State in relation to the exercise and performance of his powers and duties under the Act. An Interception of Communications Code of Practice (“the Code”) has been adopted and is now available on the Home Office website.

The Code sets out in Chapter 4 further detail regarding the procedure for applying for a warrant and the authorisation of the warrant by the Secretary of State. It stipulates that an application for a renewal of a warrant must contain an update of all the matters contained in the original application for a warrant as well as an explanation of why the interception continues to be necessary for one of the purposes set out in section 5(3) RIPA. It also requires intercepting agencies to keep their warrants under constant review to allow a warrant to be cancelled where it is no longer necessary on grounds falling within section 5(3).

The Code also provides further explanation of the safeguards which apply under section 15 RIPA to intercept material obtained. It provides specific guidance on dissemination, copying, storage and destruction of intercept material

4. The Commissioner

Section 57 RIPA provides that the Prime Minister shall appoint an Interception of Communications Commissioner (“the Commissioner”). He must be a person who holds or has held high judicial office. The Commissioner’s functions include to keep under review the exercise and performance by the Secretary of State of powers and duties conferred or imposed on him under sections 1 to 11 RIPA (powers in relation to interception); the exercise and performance, by the persons on whom they are conferred and imposed, of the powers and duties conferred or imposed by or under Chapter II of Part I (powers in relation to interception); and the adequacy of the arrangements by virtue of which the duty which is imposed on the Secretary of State by section 15 is sought to be discharged. The Commissioner is required to the give the IPT all such assistance as it may require. Section 58 RIPA places a duty on those involved in the authorisation or execution of interception warrants to disclose to the Commissioner all documents and information which he requires for carrying out his functions.

The Commissioner is required to report to the Prime Minister where he finds that there has been a violation of the provisions of RIPA and to make an annual report to the Prime Minister regarding the exercise of his functions.

5. The Investigatory Powers Tribunal

a. The establishment of the IPT and basic powers and procedure

The IPT was established to hear allegations by citizens of wrongful interference with their communications by conduct covered by RIPA. Section 65(2) provides that the IPT is the only appropriate forum in relation to proceedings for actions incompatible with Convention rights which are proceedings against any of the intelligence services; and complaints by persons who allege to have been subject to the investigatory powers of RIPA. Sections 67(2) and 67(3)(c) provide that the IPT is to apply the principles applicable by a court on an application for judicial review. Under section 67(8) RIPA, there is no appeal from a decision of the IPT “except to such extent as the Secretary of State may by order otherwise provide”.

As to procedure, section 68(1) provides as follows:

“Subject to any rules made under section 69, the Tribunal shall be entitled to determine their own procedure in relation to any proceedings, complaint or reference brought before or made to them.”

Under section 68(2), the IPT has the power to require a relevant Commissioner to provide it with all such assistance (including the Commissioner’s opinion as to any issue falling to be determined by the IPT) as its thinks fit.

Section 68(4) deals with reasons for the IPT’s decisions and provides that:

“Where the Tribunal determine any proceedings, complaint or reference brought before or made to them, they shall give notice to the complainant which (subject to any rules made by virtue of section 69(2)(i)) shall be confined, as the case may be, to either—

(a) a statement that they have made a determination in his favour; or

(b) a statement that no determination has been made in his favour.”

Under section 68(6), those involved in the authorisation and execution of an interception warrant are obliged to disclose or provide to the IPT all documents and information it may require.

b. The power to adopt rules of procedure

Section 69(1) RIPA provides that the Secretary of State may make rules regulating any matters preliminary or incidental to, or arising out of, the hearing or consideration of any proceedings before it. Under section 69(2), such rules may:

“(c) prescribe the form and manner in which proceedings are to be brought before the Tribunal or a complaint or reference is to be made to the Tribunal;

...

(f) prescribe the forms of hearing or consideration to be adopted by the Tribunal in relation to particular proceedings, complaints or references (including a form that requires any proceedings brought before the Tribunal to be disposed of as if they were a complaint or reference made to the Tribunal);

(g) prescribe the practice and procedure to be followed on, or in connection with, the hearing or consideration of any proceedings, complaint or reference (including, where applicable, the mode and burden of proof and the admissibility of evidence);

(h) prescribe orders that may be made by the Tribunal under section 67(6) or (7);

(i) require information about any determination, award, order or other decision made by the Tribunal in relation to any proceedings, complaint or reference to be provided (in addition to any statement under section 68(4)) to the person who brought the proceedings or made the complaint or reference, or to the person representing his interests.”

Section 69(4) provides a non-exhaustive list of the different kinds of rules which the Secretary of State may make, including rules:

(a) enabling or requiring the Tribunal to hear or consider any proceedings, complaint or reference without the person who brought the proceedings or made the complaint or reference having been given full particulars of the reasons for any conduct which is the subject of the proceedings, complaint or reference;

(b) enabling or requiring the Tribunal to take any steps in exercise of their jurisdiction in the absence of any person (including the person bringing the proceedings or making the complaint or reference and any legal representative of his);

(c) enabling or requiring the Tribunal to give a summary of any evidence taken in his absence to the person by whom the proceedings were brought or, as the case may be, to the person who made the complaint or reference;

(d) enabling or requiring the Tribunal to exercise their jurisdiction, and to exercise and perform the powers and duties conferred or imposed on them (including, in particular, in relation to the giving of reasons), in such manner provided for in the rules as prevents or limits the disclosure of particular matters...

Section 69(6) provides that in making the rules the Secretary of State shall have regard to the need to secure that complaints before the IPT are properly heard and the need to secure that sensitive information is not disclosed in a way that prejudices national security or the prevention or detection of serious crime.

c. The Rules

The Secretary of State has adopted rules to govern the procedure before the IPT in the form of the Investigatory Powers Tribunal Rules 2000 (“the Rules”). The Rules provide, insofar as relevant, as follows:

“Disclosure of Information

6. (1) The Tribunal shall carry out their functions in such a way as to secure that information is not disclosed to an extent, or in a manner, that is contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime, the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence services.

(2) Without prejudice to this general duty, but subject to paragraphs (3) and (4), the Tribunal may not disclose to the complainant or to any other person:

(a) the fact that the Tribunal have held, or propose to hold, an oral hearing under rule 9(4);

(b) any information or document disclosed or provided to the Tribunal in the course of that hearing, or the identity of any witness at that hearing;

(c) any information or document otherwise disclosed or provided to the Tribunal by any person pursuant to section 68(6) of the Act (or provided voluntarily by a person specified in section 68(7));

(d) any information or opinion provided to the Tribunal by a Commissioner pursuant to section 68(2) of the Act;

(e) the fact that any information, document, identity or opinion has been disclosed or provided in the circumstances mentioned in sub-paragraphs (b) to (d).

(3) The Tribunal may disclose anything described in paragraph (2) with the consent of:

(a) in the case of sub-paragraph (a), the person required to attend the hearing;

(b) in the case of sub-paragraphs (b) and (c), the witness in question or the person who disclosed or provided the information or document;

(c) in the case of sub-paragraph (d), the Commissioner in question and, to the extent that the information or opinion includes information provided to the Commissioner by another person, that other person;

(d) in the case of sub-paragraph (e), the person whose consent is required under this rule for disclosure of the information, document or opinion in question.

(4) The Tribunal may also disclose anything described in paragraph (2) as part of the information provided to the complainant under rule 13(2), subject to the restrictions contained in rule 13(4) and (5).

(5) The Tribunal may not order any person to disclose any information or document which the Tribunal themselves would be prohibited from disclosing by virtue of this rule, had the information or document been disclosed or provided to them by that person.

(6) The Tribunal may not, without the consent of the complainant, disclose to any person holding office under the Crown (except a Commissioner) or to any other person anything to which paragraph (7) applies.

(7) This paragraph applies to any information or document disclosed or provided to the Tribunal by or on behalf of the complainant, except for ... statements [as to the complainant’s name, address and date of birth and the public authority against which the proceedings are brought]

Forms of hearing and consideration

9. (1) The Tribunal’s power to determine their own procedure in relation to section 7 proceedings and complaints shall be subject to this rule.

(2) The Tribunal shall be under no duty to hold oral hearings, but they may do so in accordance with this rule (and not otherwise).

(3) The Tribunal may hold, at any stage of their consideration, oral hearings at which the complainant may make representations, give evidence and call witnesses.

(4) The Tribunal may hold separate oral hearings which:

(a) the person whose conduct is the subject of the complaint,

(b) the public authority against which the section 7 proceedings are brought, or

may be required to attend and at which that person or authority may make representations, give evidence and call witnesses.

(5) Within a period notified by the Tribunal for the purpose of this rule, the complainant, person or authority in question must inform the Tribunal of any witnesses he or it intends to call; and no other witnesses may be called without the leave of the Tribunal.

(6) The Tribunal’s proceedings, including any oral hearings, shall be conducted in private.

Evidence

11. (1) The Tribunal may receive evidence in any form, and may receive evidence that would not be admissible in a court of law.

(2) The Tribunal may require a witness to give evidence on oath.

(3) No person shall be compelled to give evidence at an oral hearing under rule 9(3).

Notification to the complainant

13. (1) In addition to any statement under section 68(4) of the Act, the Tribunal shall provide information to the complainant in accordance with this rule.

(2) Where they make a determination in favour of the complainant, the Tribunal shall provide him with a summary of that determination including any findings of fact.

...

(4) The duty to provide information under this rule is in all cases subject to the general duty imposed on the Tribunal by rule 6(1).

(5) No information may be provided under this rule whose disclosure would be restricted under rule 6(2) unless the person whose consent would be needed for disclosure under that rule has been given the opportunity to make representations to the Tribunal.”

COMPLAINTS

The applicant complains that the IPT Rules restricted his rights under Article 6 § 1 of the Convention in a disproportionate way and to such an extent that the very essence of his right to a fair hearing was impaired.

He further complains under Article 8 that the interception of his communications breaches his right to respect for his private life and correspondence, and in particular, that the legal framework established by RIPA does not meet the foreseeability requirement of Article 8 § 2 and is therefore not “in accordance with law”.

Finally, the applicant complains under Article 13 that he did not have an effective remedy in respect of his complaints under Article 6 § 1 and Article 8.

QUESTIONS TO THE PARTIES

The Government are requested;

(a) to explain the safeguards, controls and guarantees against abuse contained in the Regulation of Investigatory Powers Act 2000 (“RIPA”) which apply to the initial decision to authorise interception of internal communications, the processing and use of intercepted material and the renewal of such interception warrants;

(b) to furnish all annual reports of the Commissioners which have commented specifically on the interception of internal communications and/or renewal of interception warrants; and

(c) to provide details of any “arrangements” (within the meaning of section 15 RIPA) published by the Secretary of State in relation to the interception of internal communications together with information as to their date of publication.

2. Has there been an interference with the applicant’s right to respect for his private life and correspondence (Klass and Others v. Germany judgment of 6 September 1987, NoteAMASeries A no. 28 and Halford v. the United Kingdom, 25 June 1997, § 57, Reports of Judgments and Decisions 1997 III)?

3. Was any such interference in accordance with the law (Weber and Saravia v. Germany (dec.), no. 54934/00, 29 June 2006 and Liberty and Others v. the United Kingdom, no. 58243/00, 1 July 2008)?

4. Was any such interference proportionate to the legitimate aim(s) sought to be achieved (Klass and Others, aboveAMAAMA)?

5. Did the proceedings before the Investigatory Powers Tribunal involve the determination of “civil rights and obligations” within the meaning of Article 6 § 1 (Klass and Others, above)?

6. Did the proceedings before the Investigatory Powers Tribunal, taking into account the absence of any appeal mechanism, constitute a fair hearing within the meaning of Article 6 § 1 of the Convention (cf. Esbester v. the United Kingdom, No. 18601/91, Dec. 2 April 1993 and Christie v. the United Kingdom, No. 21482/93, Dec. 27 June 1994, DR 78, p.119)?

7. Did the applicants have an effective domestic remedy within the meaning of Article 13 of the Convention in respect of the alleged violations of Article 8 and Article 6?