v. THE UNITED KINGDOM
(Application no. 58243/00)
1 July 2008
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Liberty and Others v. the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 10 June 2008,
Delivers the following judgment, which was adopted on that date:
THE CIRCUMSTANCES OF THE CASE
1. The alleged interception of communications
2. Complaint to the Interception of Communications Tribunal (“ICT”)
“... I am directed to advise you that the Tribunal has no way of knowing in advance of an investigation whether a warrant exists in any given case. The Tribunal investigates all complaints in accordance with section 7 of the [Interception of Communications Act 1985: ‘the 1985 Act’, see paragraphs 16-33 below] establishing whether a relevant warrant or relevant certificate exists or had existed and, if so, whether there has been any contravention of sections 2 to 5. If ... the Tribunal concludes that there has been a contravention of sections 2 to 5, the Tribunal may take steps under sections 7(4), (5) and (6). In any case where there is found to have been no contravention, the Tribunal is not empowered to disclose whether or not authorised interception has taken place. In such instances, complainants are advised only that there has been no contravention of sections 2 to 5 in relation to a relevant warrant or a relevant certificate.”
3. Complaint to the Director of Public Prosecutions (“DPP”)
4. Complaint to the Investigatory Powers Tribunal (“IPT”)
“The selection criteria in relation to accessing a large quantity of as yet unexamined material obtained pursuant to a s8(4) warrant (as indeed in relation to material obtained in relation to a s8(1) warrant) are those set out in s5(3) . The Complainants’ Counsel complains that there is no ‘publicly stated material indicating that a relevant person is satisfied that the [accessing] of a particular individual’s telephone call is proportionate’. But the Respondents submit that there is indeed such publicly stated material, namely the provisions of s6(l) of the Human Rights Act which requires a public authority to act compatibly with Convention rights, and thus, it is submitted, imposes a duty to act proportionately in applying to the material the s5(3) criteria.
To that duty there is added the existence of seven safeguards listed by the Respondents’ Counsel, namely (1) the criminal prohibition on unlawful interception (2) the involvement of the Secretary of State (3) the guiding role of the Joint Intelligence Committee (‘JIC’) (4) the Code of Practice (5) the oversight by the Interception of Communication Commissioner (whose powers are set out in Part IV of the Act) (6) the availability of proceedings before this Tribunal and (7) the oversight by the Intelligence and Security Committee, an all-party body of nine Parliamentarians created by the Intelligence Services Act 1994 ...
It is plain that, although in fact the existence of all these safeguards is publicly known, it is not part of the requirements for accessibility or foreseeability that the precise details of those safeguards should be published. The Complainants’ Counsel has pointed out that it appears from the Respondents’ evidence that there are in existence additional operating procedures, as would be expected given the requirements that there be the extra safeguards required by s16 of the Act, and the obligation of the Secretary of State to ensure their existence under s15(1)(b). It is not suggested by the Complainants that the nature of those operating procedures be disclosed, but that their existence, i.e. something along the lines of what is in the Respondents’ evidence, should itself be disclosed in the Code of Practice.
We are unpersuaded by this. First, such a statement in the Code of Practice, namely as to the existence of such procedures, would in fact take the matter no further than it already stands by virtue of the words of the statute. But in any event, the existence of such procedures is only one of the substantial number of safeguards which are known to exist. Accessibility and foreseeability are satisfied by the knowledge of the criteria and the knowledge of the existence of those multiple safeguards.
... [F]oreseeability is only expected to a degree that is reasonable in the circumstances, and the circumstances here are those of national security ... In this case the legislation is adequate and the guidelines are clear. Foreseeability does not require that a person who telephones abroad knows that his conversation is going to be intercepted because of the existence of a valid s. 8(4) warrant. ...
The provisions, in this case the right to intercept and access material covered by a s.8(4) warrant, and the criteria by reference to which it is exercised, are in our judgment sufficiently accessible and foreseeable to be in accordance with law. The parameters in which the discretion to conduct interception is carried on, by reference to s. 5(3) and subject to the safeguards referred to, are plain from the face of the statute. In this difficult and perilous area of national security, taking into account both the necessary narrow approach to Article 8(2) and the fact that the burden is placed upon the Respondent, we are satisfied that the balance is properly struck.”
B. Relevant domestic law and practice
1. The Interception of Communications Act 1985
(a) Warrants for interception
(i) The three grounds for issuing a warrant
“(a) in the interests of national security;
(b) for the purpose of preventing or detecting serious crime; or
(c) for the purpose of safeguarding the economic well-being of the United Kingdom.”
“For the purposes of [the 1985 Act], conduct which constitutes or, if it took place in the United Kingdom, would constitute one or more offences shall be regarded as a serious crime if, and only if –
(a) it 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; or
(b) the offence, or one of the offences, 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.”
(ii) The two types of warrant
“(a) such communications as are sent to
or from one or more addresses specified in the warrant, being an
address or addresses likely to be used for the transmission of
communications to or from–
(i) one particular person specified or described in the warrant; or
(ii) one particular set of premises so specified or described; and
(b) such other communications (if any) as it is necessary to intercept in order to intercept communications falling within paragraph (a) above.”
By section 10(1) of the 1985 Act, the word “person” was defined to include any organisation or combination of persons and the word “address” was defined to mean any postal or telecommunications address.
“(i) such external communications as are described in the warrant; and
(ii) such other communications (if any) as it is necessary to intercept in order to intercept such external communications as are so described ...”.
“3(3) (a) the Secretary of State considers that the examination of communications sent to or from that address is necessary for the purpose of preventing or detecting acts of terrorism; and
(b) communications sent to or from that address are included in the certified material only in so far as they are sent within such a period, not exceeding three months, as is specified in the certificate.”
“There are a number of differences ... But the essential differences may be summarised as follows:
(i) Section 3(2) warrants apply only to external telecommunications;
(ii) whereas section 3(1) warrants only apply to communications to or from one particular person ... or one particular set of premises, Section 3(2) warrants are not so confined; but
(iii) at the time of issuing a Section 3(2) warrant the Secretary of State is obliged to issue a certificate describing the material which it is desired to intercept; and which he regards as necessary to examine for any of the purposes set out in Section 2(2).
So the authority to intercept granted by the Secretary of State under Section 3(2) is limited not so much by reference to the target, as it is under section 3(1), but by reference to the material. It follows that in relation to Section 3(2) warrants, I have had to consider first, whether the warrant applies to external communications only, and, secondly, whether the certified material satisfies the Section 2(2) criteria. ...
There is a further important limitation on Section 3(2) warrants. I have said that the authority granted by the Secretary of State is limited by reference to the material specified in the certificate, rather than the targets named in the warrants. This distinction is further underlined by Section 3(3) which provides that material specified shall not include the address in the British Islands for the purpose of including communications sent to or from that address, except in the case of counter-terrorism. So if, for example in a case of subversion the Security Service wishes to intercept external communications to or from a resident of the British Islands, he could not do so under a Section 3(2) warrant by asking for communications sent to or from his address to be included in the certified material. But it would be possible for the Security Service to get indirectly, through a legitimate examination of certified material, what it may not get directly. In such cases it has become the practice to apply for a separate warrant under Section 3(1) known as an overlapping warrant, in addition to the warrant under Section 3(2). There is nothing in the [1985 Act] which requires this to be done. But it is obviously a sound practice, and wholly consistent with the legislative intention underlying Section 3(3). Accordingly I would recommend that where it is desired to intercept communications to or from an individual residing in the British Islands, as a separate target, then in all cases other than counter-terrorism there should be a separate warrant under Section 3(1), even though the communications may already be covered by a warrant under Section 3(3). The point is not without practical importance. For the definition of “relevant warrant” and “relevant certificate” in Section 7(9) of the Act makes it clear that, while the Tribunal has power to investigate warrants issued under section 3(1) and certificates under section 3(2) where an address is specified in the certificate, it has no such power to investigate Section 3(2) warrants, where an address is not so certified.”
(iii) Use and retention of information
“(1) Where the Secretary of State issues a warrant he shall, unless such arrangements have already been made, make such arrangements as he considers necessary for the purpose of securing-
(a) that the requirements of subsections (2) and (3) below are satisfied in relation to the intercepted material; and
(b) where a certificate is issued in relation to the warrant, that so much of the intercepted material as is not certified by the certificate is not read, looked at or listened to by any person.
(2) The requirements of this subsection are satisfied in relation to any intercepted material if each of the following, namely-
(a) the extent to which the material is disclosed;
(b) the number of persons to whom any of the material is disclosed;
(c) the extent to which the material is copied; and
(d) the number of copies made of any of the material;
is limited to the minimum that is necessary as mentioned in section 2 (2) above.
(3) The requirements of this subsection are satisfied in relation to any intercepted material if each copy made of any of that material is destroyed as soon as its retention is no longer necessary as mentioned in section 2 (2) above.”
(b) The Interception of Communications Tribunal (“ICT”)
“For the purposes of this section –
(a) a warrant is a relevant warrant in relation to an applicant if –
(i) the applicant is specified or described in the warrant; or
(ii) an address used for the transmission of communications to or from a set of premises in the British Islands where the applicant resides or works is so specified;
(b) a certificate is a relevant certificate in relation to an applicant if and to the extent that an address used as mentioned in paragraph (a)(ii) above is specified in the certificate for the purpose of including communications sent to or from that address in the certified material.”
(c) The Commissioner
– to keep under review the carrying out by the Secretary of State of the functions conferred on him by sections 2-5 of the 1985 Act;
– to give to the ICT all such assistance as it might require for the purpose of enabling it to carry out its functions;
– to keep under review the adequacy of the arrangements made under section 6 for safeguarding intercepted material and destroying it where its retention was no longer necessary;
– to report to the Prime Minister if there appeared to have been a contravention of sections 2-5 which had not been reported by the ICT or if the arrangements under section 6 were inadequate;
– to make an annual report to the Prime Minister on the exercise of the Commissioner’s functions. This report had to be laid before the Houses of Parliament. The Prime Minister had the power to exclude any matter from the report if publication would have been prejudicial to national security, to the prevention or detection of serious crime or to the well-being of the United Kingdom. The report had to state if any matter had been so excluded.
“The third major safeguard is provided by the Commissioner himself. While there is nothing to prevent consultation of the Commissioner before a warrant is issued, it is not the practice to consult him in advance and such consultation on a routine basis would not be practicable. So the Commissioner’s view is largely retrospective, to check that warrants have not been issued in contravention of the Act and that appropriate procedures were followed. To that end, I have visited all the warrant issuing departments and agencies named in this report, in most cases more than once, and discussed at some length the background to the warrant applications. I have also discussed the procedure for seeking warrants with officials at various levels in all the initiating bodies and presenting departments. I have inspected a significant number of warrants, some chosen by me at random, some put before me because it was felt that I should see them. Although I have described ... a number of instances in which mistakes were made or mishaps occurred, I have seen no case in which the statutory restrictions were deliberately evaded or corners knowingly cut. A salutary practice has grown up by which the Commissioner’s attention is specifically drawn to any case in which an error or contravention of the Act has occurred: I accordingly believe that there has been no such case during 1992 of which I am unaware.”
Similar conclusions about the authorities’ compliance with the law were drawn by all the Commissioners in their reports during the 1990s.
“Some of the written statements of section 6 safeguards which I inspected required to be updated to take account of changes in the public telecommunications market since they had been drafted and approved. Other statements could, as it seemed to me, be improved by more explicit rules governing the circumstances and manner in which, and the extent to which, intercept material could be copied. It also seemed to me that it would be advantageous, where this was not already done, to remind all involved m handling intercept material on a regular basis of the safeguards to which they were subject, securing written acknowledgements that the safeguards had been read and understood. These suggestions appeared to be readily accepted by the bodies concerned. They did not in my view indicate any failure to comply with section 6 of the Act.”
In his first year as Commissioner, Lord Nolan reported the following on this issue of section 6 safeguards (1994 Report, § 6):
“Like my predecessors, I have on each of my visits considered and discussed the arrangements made by the Secretary of State under section 6 for the purpose of limiting the dissemination and retention of intercepted material to what is necessary within the meaning of section 2. Each agency has its own set of such arrangements, and there are understandable variations between them. For example, the practical considerations involved in deciding what is necessary in the interests of national security, or the economic well-being of the United Kingdom (the areas with which the Security Service and the Secret Intelligence Service are almost exclusively concerned) are somewhat different from those involved in the prevention and detection of serious criminal offences (with which the police forces and HM Customs & Excise are almost exclusively concerned). I am satisfied that all of the agendas are operating within the existing approved safeguards under the terms of the arrangements as they stand ...”
2. The Regulation of Investigatory Powers Act 2000
“For the purposes of this Act, but subject to the following provisions of this section, a person intercepts a communication in the course of its transmission by means of a telecommunications system if, and only if, he –
(a) so modifies or interferes with the system, or its operation,
(b) so monitors transmissions made by means of the system, or
(c) so monitors transmissions made by wireless telegraphy to or from apparatus comprised in the system,
as to make some of all of the contents of the communication available, while being transmitted, to a person other than the sender or intended recipient of the communication.”
“An application for a warrant is made to the Secretary of State . . . Each application, a copy of which must be retained by the applicant, should contain the following information :
• Background to the operation in question.
• Person or premises to which the application relates (and how the person or premises feature in the operation) .
• Description of the communications to be intercepted, details of communications service provider(s) and an assessment of the feasibility of the interception operation where this is relevant.
• Description of the conduct to be authorised as considered necessary in order to carry out the interception, where appropriate.
• An explanation of why the interception is considered to be necessary under the provisions of section 5(3).
• A consideration of why the conduct is to be authorised by the warrant is proportionate to what is sought to be achieved by that conduct.
• A consideration of any unusual degree of collateral intrusion and why that intrusion is justified in the circumstances. In particular, where the communications in question might affect religious, medical or journalistic confidentiality or legal privilege, this must be specified in the application.
• Where an application is urgent, supporting justification should be provided.
• An assurance that all material intercepted will be handled in accordance with the safeguards required by section 15 of the Act .
The IPT continued:
“Applications for a s. 8(4) warrant are addressed in subparagraph 5 .2 of the Code of Practice :
‘An application for a warrant is made to the Secretary of State ... each application, a copy of which must be retained by the applicant, should contain the following information :
• Background to the operation in question [identical to the first bullet point in 4.2].
• Description of the communications ... [this is materially identical to the third bullet point in 4.1] .
• Description of the conduct to be authorised, which must be restricted to the interception of external communications, or to conduct necessary in order to intercept those external communications, where appropriate [compare the wording of the fourth bullet in 4 .2].
• The certificate that will regulate examination of intercepted material.
• An explanation of why the interception is considered to be necessary for one or more of the section 5(3) purposes [identical to the fifth bullet point in 4 .2].
• A consideration of why the conduct should be authorised by the warrant is proportionate . . . [identical to the sixth bullet point in 4 .2].
• A consideration of any unusual degree of collateral intrusion . . . [identical to the seventh bullet point in 4 .2].
• Where an application is urgent . . . [identical to the eighth bullet point in 4 .2].
• An assurance that intercepted material will be read, looked at or listened to only so far as it is certified, and it meets the conditions of sections 16(2) -16(6) of the Act.
• An assurance that all material intercepted will be handled in accordance with the safeguards required by sections 15 and 16 of the Act [these last two bullets of course are the equivalent to the last bullet point in 4 .2].
... By subparagraph 4(8), the s. 8(l) warrant instrument should include ‘the name or description of the interception subject or of the set of premises in relation to which the interception is to take place’ and by subparagraph 4(9) there is reference to the schedules required by s. 8(2) of [the 2000 Act]. The equivalent provision in relation to the format of the s. 8(4) warrant in subparagraph 5(9) does not of course identify a particular interception subject or premises, but requires inclusion in the warrant of a ‘description of the communications to be intercepted’.”
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. The parties’ submissions
1. The applicants
First, a warrant would be issued, specifying an external communications link or links to be physically intercepted. Such warrants covered very broad classes of communications, for example, “all commercial submarine cables having one terminal in the UK and carrying external commercial communications to Europe”. All communications falling within the specified category would be physically intercepted.
Secondly, the Secretary of State would issue a certificate, describing the categories of information which could be extracted from the total volume of communications intercepted under a particular warrant. Certificates were formulated in general terms, and related only to intelligence tasks and priorities; they did not identify specific targets or addresses. They did not need to be more specific than the broad classes of information specified in the 1985 Act, for example, “national security”, “preventing or detecting serious crime” or “safeguarding the economic well-being of the United Kingdom”. The combination of a certificate and a warrant formed a “certified warrant”.
The third stage in the process was filtering. An automated sorting system or search engine, operating under human control, selected communications containing specific search terms or combinations thereof. The search terms would relate to one or more of the certificates issued for the relevant intercepted communications link. Search terms could also be described as “keyword lists”, “technical databases” or “The Dictionary”. Search terms and filtering criteria were not specified in certificates, but were selected and administered by State officials without reference to judicial officials or ministers.
Fourth, a system of rules was in place to promote the “minimisation” of the interference with privacy, namely how to review communications intelligence reports and remove names or material identifying citizens or entities whose details might incidentally have been included in raw material which had otherwise been lawfully intercepted and processed. Where the inclusion of such details in the final report was not proportionate or necessary for the lawful purpose of the warranted interception, it would be removed.
The fifth and final stage in the process was “dissemination”. Information obtained by an interference with the privacy of communications could be disseminated only where the recipients’ purpose(s) in receiving the information was proportionate and necessary in the circumstances. Controls on the dissemination formed a necessary part of Article 8 safeguards.
2. The Government
“... Disclosure of the arrangements would reveal important information about the methods of interception used. It is for this reason that the Government is unable to disclose the full detail of the section 6 arrangements for section 3(2) warrants that were in place during the relevant period. The methods to which the relevant documents relate for the relevant period remain a central part of the methods which continue to be used. Therefore, disclosure of the arrangements, the Government assesses and I believe, would be contrary to the interests of national security. It would enable individuals to adapt their conduct so as to minimise the effectiveness of any interception methods which it might be thought necessary to apply to them.
Further, the manuals and instructions setting out the section 6 safeguards and arrangements are in large part not in a form which would be illuminating or readily comprehensible to anyone who had not also undergone the training I have referred to above or had the benefit of detailed explanations. They are couched in technical language and refer to specific techniques and processes which cannot be understood simply from the face of the documents. They contain detailed instructions, precisely in order to ensure that the section 6 arrangements and section 3(2) requirements were fully understood by staff and were fully effective. Any explanations given by the Government of those techniques and processes would compound the problem, referred to above, of undermining the operational effectiveness of the system and techniques used under the authority of warrants.”
The Government stressed, however, that the detailed arrangements were the subject of independent review by the successive Commissioners, who reported that they operated as robust safeguards for individuals’ rights (see paragraphs 31-33 above).
1. Whether there was an interference
2. Whether the interference was justified
3. Whether the interference was “in accordance with the law”
a. General principles
“93. .... foreseeability in the special context of secret measures of surveillance, such as the interception of communications, cannot mean that an individual should be able to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly (see, inter alia, Leander [v. Sweden, judgment of 26 August 1987, Series A no. 116], p. 23, § 51). However, especially where a power vested in the executive is exercised in secret, the risks of arbitrariness are evident (see, inter alia, Malone, cited above, p. 32, § 67; Huvig, cited above, pp. 54-55, § 29; and Rotaru [v. Romania [GC], no. 28341/95, § 55, ECHR 2000-V]). It is therefore essential to have clear, detailed rules on interception of telephone conversations, especially as the technology available for use is continually becoming more sophisticated (see Kopp v. Switzerland, judgment of 25 March 1998, Reports 1998-II, pp. 542-43, § 72, and Valenzuela Contreras v. Spain, judgment of 30 July 1998, Reports 1998-V, pp. 1924-25, § 46). The domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures (see Malone, ibid.; Kopp, cited above, p. 541, § 64; Huvig, cited above, pp. 54-55, § 29; and Valenzuela Contreras, ibid.).
94. Moreover, since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive or to a judge to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference (see, among other authorities, Malone, cited above, pp. 32-33, § 68; Leander, cited above, p. 23, § 51; and Huvig, cited above, pp. 54-55, § 29).
95. In its case-law on secret measures of surveillance, the Court has developed the following minimum safeguards that should be set out in statute law in order to avoid abuses of power: the nature of the offences which may give rise to an interception order; a definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or the tapes destroyed (see, inter alia, Huvig, cited above, p. 56, § 34; Amann, cited above, § 76; Valenzuela Contreras, cited above, pp. 1924-25, § 46; and Prado Bugallo v. Spain, no. 58496/00, § 30, 18 February 2003).”
b. Application of the general principles to the present case
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
They submitted that Article 13 required the provision of a domestic remedy allowing the competent national authority to deal with the substance of the Convention complaint and to grant relief. The 1985 Act, however, provided no remedy for an interference where there had been a breach of the section 6 “arrangements” in a particular case.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 7,500 (seven thousand five hundred euros) in respect of costs and expenses, to be converted into pounds sterling at the rate applicable at the date of settlement, plus any tax that may be chargeable to the applicants;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 1 July 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki