Britain has been carrying out mass surveillance of telephone calls
made from and in Ireland.

This was condemned at the European Court of Human Rights.

The URL of the page is too long to copy to a Newsgroup, so the entry
is given in full under the dotted line.

Under the second dotted line is my comment, giving more examples of
British government transgressions.

Charles Douglas Wehner

----------------------------------------------------------------------
Liberty v. UK: European Court of Human Rights finds mass surveillance
system violates the right to privacy
July 1st, 2008
In the appropriately named Liberty v. The United Kingdom the European
Court of Human Rights has held that a system of mass surveillance
operated by the UK government to spy on all telephone calls, faxes and
emails to and from Ireland was in breach of the right to privacy under
Article 8 of the European Convention on Human Rights.

The case, brought by the Irish Council for Civil Liberties, Liberty
and British-Irish Rights Watch dealt with a system operated by the
Ministry of Defence which monitored, between 1990 and 1997, up to
10,000 simultaneous telephone channels coming from Dublin to London
and on to the continent. During this time the MoD intercepted all
public telecommunications, including telephone, facsimile and e-mail
communications, carried on microwave radio between two of British
Telecom’s radio stations (at Clwyd and Chester), a link which carried
much of Ireland’s telecommunications traffic. Those telephone callsfaxes and emails were then stored and filtering using search engines
and keyword lists before being passed to intelligence analysts.

In its judgment the Court held that the system’s lack of legislative
safeguards and protections against abuse meant that it was in breach
of Article 8:

In conclusion, the Court does not consider that the domestic law at
the relevant time indicated with sufficient clarity, so as to provide
adequate protection against abuse of power, the scope or manner of
exercise of the very wide discretion conferred on the State to
intercept and examine external communications. In particular, it did
not, as required by the Court’s case-law, set out in a form accessible
to the public any indication of the procedure to be followed for
selecting for examination, sharing, storing and destroying intercepted
material. The interference with the applicants’ rights under Article 8
was not, therefore, “in accordance with the law”.

The Irish Council for Civil Liberties have put out this press release
with more detail including a comment from us about the impact of this
case for Irish law:

Calls for surveillance law reform after Strasbourg court victory

Leading human rights groups in Ireland and the United Kingdom have
today called for urgent reform of surveillance laws, after securing a
significant victory in their case before the European Court of Human
Rights.

The Irish Council for Civil Liberties (ICCL), Liberty and British-
Irish Rights Watch took their case to Strasbourg because, over a seven
year period, all telephone, fax, e-mail and data communications
between the UK and Ireland, including legally privileged and
confidential information, were intercepted and stored en masse by an
Electronic Test Facility operated by the British Ministry of Defence.

The European Court of Human Rights has found that the rules governing
data interception in the United Kingdom did not “as required by the
Court’s case-law, set out in a form accessible to the public any
indication of the procedure to be followed for selecting for
examination, sharing, storing and destroying intercepted material. The
interference with the applicants’ rights under Article 8 (the right to
privacy) was not, therefore, “in accordance with the law”. It follows
that there has been a violation of Article 8 in this case.”

Welcoming the judgment, ICCL Director Mr Mark Kelly said:

“The Strasbourg Court has vindicated the ICCL’s belief that data
“fishing expeditions” by the intelligence services will fall foul of
Article 8 of the European Convention on Human Rights. The judges have
found that the United Kingdom’s relatively sophisticated rules on data
interception have failed to prevent unlawful interference with privacy
rights. This has clear implications for Ireland’s lax data
interception regime, which will require a thorough overhaul in order
to ensure that it meets the standards required by the European Court
of Human Rights.”

TJ McIntyre, Chairman of Digital Rights Ireland and lecturer in law in
University College Dublin, said that this judgment would be
significant for the legal challenge to data retention currently being
brought by Digital Rights Ireland in the High Court:

“This is a landmark case which casts further doubt on the legality of
Ireland’s “data retention” system which tracks the telephone calls and
internet use of all citizens without discrimination. It is a clear
statement from the Court of Human Rights that indiscriminate
surveillance will generally be incompatible with the right to privacy
under the European Convention on Human Rights.”

Alex Gask, Liberty’s Legal Officer added:

“The Court of Human Rights has rightly found that greater
accessibility and accountability is required to ensure respect for the
privacy of thousands of innocent people. While secret surveillance is
a valuable tool, the mechanisms for intercepting our telephone calls
and e-mails should be as open and accountable as possible, and should
ensure proportionate use of very wide powers.”

The full judgment is available below:

FOURTH SECTION

CASE OF LIBERTY AND OTHERS

v. THE UNITED KINGDOM

(Application no. 58243/00)

JUDGMENT

STRASBOURG

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:

Lech Garlicki, President,
Nicolas Bratza,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
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:

PROCEDURE

1. The case originated in an application (no. 58243/00) against the
United Kingdom of Great Britain and Northern Ireland lodged with the
Court under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by Liberty, British
Irish Rights Watch and the Irish Council for Civil Liberties, a
British and two Irish civil liberties’ organisations based in London
and Dublin respectively, on 9 September 1999.

2. The applicants were represented by Mr A. Gask, a lawyer practising
in London. The United Kingdom Government (“the Government”) were
represented by their Agent, Mr D. Walton, Foreign and Commonwealth
Office.

3. On 25 June 2002 the Court decided to communicate the application to
the Government, and several rounds of observations were received from
the parties. On 22 March 2005 the Court adjourned the case until
linked proceedings before the Investigatory Powers Tribunal had
concluded (see paragraphs 11-15 below). On 27 February 2006 the Court
resumed its examination and, under the provisions of Article 29 § 3 of
the Convention, decided to examine the merits of the application at
the same time as its admissibility. Further observations were,
therefore, sought from the parties.

4. The applicants requested a hearing but the Court decided that it
would not be necessary.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

1. The alleged interception of communications

5. The applicants alleged that in the 1990s the Ministry of Defence
operated an Electronic Test Facility (“ETF”) at Capenhurst, Cheshire,
which was built to intercept 10,000 simultaneous telephone channels
coming from Dublin to London and on to the continent. Between 1990 and
1997 the applicants claimed that the ETF intercepted all public
telecommunications, including telephone, facsimile and e-mail
communications, carried on microwave radio between the two British
Telecom’s radio stations (at Clwyd and Chester), a link which also
carried much of Ireland’s telecommunications traffic. During this
period the applicant organisations were in regular telephone contact
with each other and also providing, inter alia, legal advice to those
who sought their assistance. They alleged that many of their
communications would have passed between the British Telecom radio
stations referred to above and would thus have been intercepted by the
ETF.

2. Complaint to the Interception of Communications Tribunal (“ICT”)

6. On 9 September 1999, having seen a television report on the alleged
activities of the ETF, the applicant organisations requested the
Interception of Communications Tribunal (“the ICT”: see paragraphs
28-30 below) to investigate the lawfulness of any warrants which had
been issued in respect of the applicants’ communications between
England and Wales and Ireland. On 19 October 1999 an official of the
ICT confirmed that an investigation would proceed and added:

“… 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.”

7. By a letter dated 16 December 1999 the ICT confirmed that it had
thoroughly investigated the matter and was satisfied that there had
been no contravention of sections 2 to 5 of the 1985 Act in relation
to the relevant warrant or certificate.

3. Complaint to the Director of Public Prosecutions (“DPP”)

8. By a letter dated 9 September the applicants complained to the DPP
of an unlawful interception, requesting the prosecution of those
responsible. The DPP passed the matter to the Metropolitan Police for
investigation. By a letter dated 7 October 1999 the police explained
that no investigation could be completed until the ICT had
investigated and that a police investigation might then follow if it
could be shown that an unwarranted interception had taken place or if
any of the other conditions set out in section 1(2)-(4) of the 1985
Act had not been met. The applicants pointed out, in their letter of
12 October 1999, that the vague, albeit statutory, response of the ICT
would mean that they would not know whether a warrant had been issued
or, if it had, whether it had been complied with. They would not,
therefore, be in a position to make submissions to the police after
the ICT investigation as to whether or not a criminal investigation
was warranted. The applicants asked if, and if so how, the police
could establish for themselves whether or not a warrant had been
issued, so as to decide whether an investigation was required, and how
the police would investigate, assuming there had been no warrant.

9. The DPP responded on 19 October 1999 that the police had to await
the ICT decision, and the police responded on 9 November 1999 that the
applicants’ concerns were receiving the fullest attention, but that
they were unable to enter into discussion on matters of internal
procedure and inter-departmental investigation.

10. On 21 December 1999 the applicants wrote to the police pointing
out that, having received the decision of the ICT, they still did not
know whether or not there had been a warrant or whether there had been
unlawful interception. The response, dated 17 January 2000, assured
the applicants that police officers were making enquires with the
relevant agencies with a view to establishing whether there had been a
breach of section 1 of the 1985 Act and identifying the appropriate
investigative authority. The police informed the applicants by a
letter dated 31 March 2000 that their enquiries continued, and, by a
letter dated 13 April 2000, that these enquiries had not revealed an
offence contrary to section 1 of the 1985 Act.

4. Complaint to the Investigatory Powers Tribunal (“IPT”)

11. On 15 December 2000 the former statutory regime for the
interception of communications was replaced by the Regulation of
Investigatory Powers Act 2000 (see paragraphs 34-39 below) and a new
tribunal, the IPT, was created.

12. On 13 August 2001 the applicants began proceedings in the IPT
against the security and intelligence agencies of the United Kingdom,
complaining of interferences with their rights to privacy for their
telephone and other communications from 2 October 2000 onwards
(British-Irish Rights Watch and others v. The Security Service and
others, IPT/01/62/CH). The IPT, sitting as its President and Vice-
President (a Court of Appeal and a High Court judge), had security
clearance and was able to proceed in the light not just of open
evidence filed by the defendant services but also confidential
evidence, which could not be made public for reasons of national
security.

13. On 9 December 2004 the IPT made a number of preliminary rulings on
points of law. Although the applicants had initially formulated a
number of claims, by the time of the ruling these had been narrowed
down to a single complaint about the lawfulness of the “filtering
process”, whereby communications between the United Kingdom and an
external source, captured under a warrant pursuant to section 8(4) of
the 2000 Act (which had replaced section 3(2) of the 1985 Act: see
paragraphs 34-39 below), were sorted and accessed pursuant to secret
selection criteria. The question was, therefore, whether “the process
of filtering intercepted telephone calls made from the UK to overseas
telephones … breaches Article 8 § 2 [of the Convention] because it is
not ‘in accordance with the law’”.

14. The IPT found that the difference between the warrant schemes for
interception of internal and external communications was justifiable,
because it was more necessary for additional care to be taken with
regard to interference with privacy by a Government in relation to
domestic telecommunications, given the substantial potential control
it exercised in this field; and also because its knowledge of, and
control over, external communications was likely to be much less
extensive.

15. As to whether the law was sufficiently accessible and foreseeable
for the purposes of Article 8 § 2, the IPT observed:

“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

16. During the period at issue in this application the relevant
legislation was sections 1-10 of the Interception of Communications
Act 1985 (“the 1985 Act”), which came into force on 10 April 1986 and
was repealed by the Regulation of Investigatory Powers Act 2000 (“the
2000 Act”).

17. Pursuant to section 1 of the 1985 Act, a person who intentionally
intercepted a communication in the course of its transmission by post
or by means of a public telecommunications system was guilty of an
offence. A number of exceptions were made, the relevant one being a
communication intercepted pursuant to a warrant issued by the
Secretary of State under section 2 of the 1985 Act and in accordance
with a certificate issued under section 3(2)(b) of the 1985 Act.

(a) Warrants for interception

(i) The three grounds for issuing a warrant

18. The Secretary of State’s power to issue a warrant under section 2
of the 1985 Act could be exercised only if he considered the warrant
necessary:

“(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.”

19. The term “serious crime” was defined by section 10(3) of the Act
as follows:

“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.”

20. The scope of the term “national security” was clarified by the
Commissioner appointed under the 1985 Act. In his 1986 report he
stated (§ 27) 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”.

21. In determining whether a warrant was necessary for one of the
three reasons set out in section 2(2) of the 1985 Act, the Secretary
of State was under a duty to take into account whether the information
which it was considered necessary to acquire could reasonably be
acquired by other means (section 2(3)). In addition, warrants to
safeguard the economic well-being of the United Kingdom could not be
issued unless the information to be acquired related to the acts or
intentions of persons outside the British Islands (section 2(4)). A
warrant required the person to whom it was addressed to intercept, in
the course of their transmission by post or by means of a public
telecommunications system, such communications as were described in
the warrant.

(ii) The two types of warrant

22. Two types of warrant were permitted by section 3 of the 1985 Act.
The first, a “section 3(1) warrant”, was a warrant that required the
interception of:

“(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.

23. The second type of warrant, a “section 3(2) warrant”, was one that
required the interception, in the course of transmission by means of a
public telecommunications system, of:

“(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 …”.

24. When he issued a section 3(2) warrant, the Secretary of State was
required to issue also a certificate containing a description of the
intercepted material the examination of which he considered necessary
in the interests of national security, to prevent or detect serious
crime or to safeguard the State’s economic well-being (section 3(2)
(b)). A section 3(2) warrant could not specify an address in the
British Islands for the purpose of including communications sent to or
from that address in the certified material unless-

“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.”

25. Section 3(2) warrants could be issued only under the hand of the
Secretary of State or a permitted official of high rank with the
written authorisation of the Secretary of State. If issued under the
hand of the Secretary of State, the warrant was valid for two months;
if by another official, it was valid for two days. Only the Secretary
of State could renew a warrant. If the Secretary of State considered
that a warrant was no longer necessary in the interests of national
security, to prevent or detect serious crime or to safeguard the
State’s economic well-being, he was under a duty to cancel it (section
4).

26. The annual report of the Commissioner for 1986 explained the
difference between warrants issued under section 3(1) and under
section 3(2):

“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

27. Section 6 of the 1985 Act was entitled “Safeguards” and read as
follows:

“(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”)

28. Section 7 of the 1985 Act provided for a Tribunal to investigate
complaints from any person who believed that communications sent by or
to him had been intercepted. Its jurisdiction, so far as material, was
limited to investigating whether there was or had been a “relevant
warrant” or a “relevant certificate” and, where there was or had been,
whether there had been any contravention of sections 2-5 of the 1985
Act in relation to that warrant or certificate. Section 7(9) read, in
so far as relevant, as follows:

“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.”

29. The ICT applied the principles applicable by a court on an
application for judicial review. If it found there had been a
contravention of the provisions of the Act, it was to give notice of
that finding to the applicant, make a report to the Prime Minister and
to the Commissioner appointed under the Act and, where it thought fit,
make an order quashing the relevant warrant, directing the destruction
of the material intercepted and/or directing the Secretary of State to
pay compensation. In other cases, the ICT was to give notice to the
applicant stating that there had been no contravention of sections 2-5
of the Act.

30. The ICT consisted of five members, each of whom was required to be
a qualified lawyer of not less than ten years standing. They held
office for a five-year period and could be re-appointed. The decisions
of the ICT were not subject to appeal.

(c) The Commissioner

31. Section 8 provided that a Commissioner be appointed by the Prime
Minister. He or she was required to be a person who held, or who had
held, high judicial office. The Commissioner’s functions included the
following:

– 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.

32. In his first report as Commissioner, in 1992, Sir Thomas Bingham
MR, as he then was, explained his own role as part of the safeguards
inherent in the 1985 Act as follows:

“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.

33. In each of the annual reports made under the 1985 Act the
Commissioner stated that in his view the arrangements made under
section 6 of the 1985 were adequate and complied with, without
revealing what the arrangements were. In the 1989 Report the
Commissioner noted at § 9 that there had been technological advances
in the telecommunications field which had “necessitated the making of
further arrangements by the Secretary of State for the safeguarding of
material under section 6 of the [1985 Act]”. The Commissioner stated
that he had reviewed the adequacy of the new arrangements. For the
year 1990, the Commissioner recorded that, as a result of a new
practice of the police disclosing some material to the Security
Service, a further change in the section 6 arrangements had been
required. The Commissioner said in the 1990 Report that he was
“satisfied with the adequacy of the new arrangements” (1990 Report at
§ 18). In the 1991 Report, the Commissioner stated that there had been
some minor changes to the section 6 arrangements and confirmed that he
was satisfied with the arrangements as modified (§ 29 of the 1991
Report). In the 1993 Report, the Commissioner said at § 11:

“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

34. The 2000 Act came into force on 15 December 2000. The explanatory
memorandum described the main purpose of the Act as being to ensure
that the relevant investigatory powers were used in accordance with
human rights. As to the first, interceptions of communications, the
2000 Act repealed, inter alia, sections 1-10 of the 1985 Act and
provides for a new regime for the interception of communications.

35. The 2000 Act is designed to cover the purposes for which the
relevant investigatory powers may be used, which authorities can use
the powers, who should authorise each use of the power, the use that
can be made of the material gained, judicial oversight and a means of
redress for the individual.

36. A new Investigatory Powers Tribunal (“IPT”) assumed the
responsibilities of the former ICT, of the Security Services Tribunal
and of the Intelligence Services Tribunal. The Interception of
Communications Commissioner continues to review the actions of the
Secretary of State as regards warrants and certificates and to review
the adequacy of the arrangements made for the execution of those
warrants. He is also, as before, to assist the Tribunal. In addition,
the Secretary of State is to consult about and to publish codes of
practice relating to the exercise and performance of duties in
relation to, inter alia, interceptions of communications.

37. Section 2(2) of the 2000 Act defines interception as follows:

“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.”

38. Section 5(2) of the 2000 Act provides that the Secretary of State
shall not issue an interception warrant unless he believes that the
warrant is necessary, inter alia, in the interests of national
security, for the purpose of preventing or detecting serious crime or
for the purpose of safeguarding the economic well-being of the United
Kingdom and that the conduct authorised by the warrant is
proportionate to what is sought to be achieved by that conduct.

39. In addition to the general safeguards specified in section 15 of
the Act, section 16 provides additional safeguards in the case of
certificated warrants (namely warrants for interception of external
communications supported by a certificate). In particular, section 16
(1) provides that intercepted material is to be read, looked at or
listened to by the persons to whom it becomes available by virtue of
the warrant to the extent only that it has been certified as material
the examination of which is necessary for one of the above purposes
and falls within subsection (2). Intercepted material falls within
subsection (2) so far only as it is selected to be read, looked at or
listened to otherwise than according to a factor which is referable to
an individual who is known to be for the time being in the British
Isles and has as its purpose, or one of its purposes, the
identification of material in communications sent by that person, or
intended for him.

40. In its Ruling of 9 December 2004 (see paragraphs 13-15 above), the
IPT set out the following extracts from the Interception of
Communications Code of Practice issued pursuant to s. 71 of the 2000
Act (“the Code of Practice”). Subparagraph 4(2) of the Code of
Practice deals with the application for a s. 8(1) warrant as follows :

“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’.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

41. The applicants complained about the interception of their
communications, contrary to 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

42. The applicants complained that, between 1990 and 1997, telephone,
facsimile, e-mail and data communications between them were
intercepted by the Capenhurst facility, including legally privileged
and confidential material.

43. Through the statements of Mr Duncan Campbell, a telecommunications
expert, they alleged that the process applying to external warrants
under section 3(2) of the 1985 Act embodied five stages.

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.

44. The applicants contended that since the section 3(2) procedure
permitted the interception of all communications falling within the
large category set out in each warrant, the only protection afforded
to those whose communications were intercepted was that the Secretary
of State, under section 6(1) of the Act, had to “make such
arrangements as he considers necessary for the purpose of securing
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”
unless the requirements of section 6(2) were met. However, the precise
nature of these “arrangements” were not, at the relevant time, made
known to the public, nor was there any procedure available to permit
an individual to satisfy him or herself that the “arrangements” had
been followed. The Tribunal did not have jurisdiction to examine such
compliance, and although the Commissioner was authorised under section
8 to review the adequacy of the “arrangements” in general, he had no
power to review whether they had been met in an individual case.

45. It was plain that the alleged interception of communications
constituted an interference with the applicants’ rights under Article
8 § 1. Any such interception, to comply with Article 8 § 2, had to be
“in accordance with the law”, and thus have a basis in domestic law
that was adequately accessible and formulated with sufficient
precision as to be foreseeable. They contended that the United Kingdom
legislation breached the requirements of foreseeability. They
submitted that it would not compromise national security to describe
the arrangements in place for filtering and disseminating intercepted
material, and that detailed information about similar systems had been
published by a number of other democratic countries, such as the
United States of America, Australia, New Zealand, Canada and Germany.
The deficiencies in the English system were highlighted by the Court’s
decision in Weber and Saravia v. Germany (dec.), no. 54934/00, 29 June
2006, which noted that the German legislation set out on its face
detailed provisions regulating, inter alia, the way in which
individual communications were to be selected from the pool of
material derived from “strategic interception”; disclosure of selected
material amongst the various agencies of the German State and the use
that each could properly make of the material; and the retention or
destruction of the material. The authorities’ discretion was further
regulated and constrained by the public rulings of the Federal
Constitutional Court on the compatibility of the provisions with the
Constitution. In contrast, in the United Kingdom at the relevant time
no provision was made on the face of the statute for any part of the
processes following the initial interception, other than the duty on
the Secretary of State to make unspecified “arrangements”. The
arrangements themselves were unpublished. There was no legal material
in the public domain indicating how the authorities’ powers to select,
disclose, use or retain particular communications were regulated. The
authorities’ conduct was not “in accordance with the law” because it
was unsupported by any predictable legal basis satisfying the
accessibility principle.

46. In addition, the applicants denied that the interferences pursued
a legitimate aim or were proportionate to any such aim, since the 1985
Act permitted interception of large classes of communications for any
purpose, and it was only subsequently that this material was sifted to
determine whether it fell within the scope of a section 3(2) warrant.

2. The Government

47. For security reasons, the Government adopted a general policy of
neither confirming nor denying allegations made in respect of
surveillance activities. For the purposes of this application,
however, they were content for the Court to proceed on the
hypothetical basis that the applicants could rightly claim that
communications sent to or from their offices were intercepted at the
Capenhurst ETF during the relevant period. Indeed, they submitted
that, in principle, any person who sent or received any form of
telecommunication outside the British Islands during the period in
question could have had such a communication physically intercepted
under a section 3(2) warrant. However, the Government emphatically
denied that any interception was being conducted without the necessary
warrants and it was their position that, if interception of the
applicants’ communications did occur, it would have been lawfully
sanctioned by an appropriate warrant under section 3(2) of the 1985
Act.

48. The Government annexed to their first set of Observations, dated
28 November 2002, a statement by Mr Stephen Boys Smith, a senior Home
Office official, in which it was claimed:

“… 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).

49. The Government annexed to their Further Observations, dated 23 May
2003, a second statement by Mr Boys Smith, in response to Mr
Campbell’s statement (see paragraph 48 above), which provided more
detail, to the extent that was possible without undermining national
security, about the “arrangements” made by the Secretary of State
under section 6 of the Act. The Government submitted that the Court
should proceed on the basis that, in the absence of evidence to the
contrary, in the democratic society of the United Kingdom, the
relevant ministers, officials and Commissioners properly discharged
their statutory duties to ensure that safeguards were in place to
comply with all the requirements of section 6. Moreover Mr Boys
Smith’s statement showed that during the relevant period there was a
range of safeguards in place to ensure that the process of selection
of material for examination (the stage referred to by the applicants
as “filtering”) could be carried out only strictly in accordance with
the statutory framework and the terms of the warrant and the
certificate (that is, could be carried out only when necessary in the
interests of national security, for the purpose of preventing or
detecting serious crime or for the purpose of safeguarding the
economic well-being of the United Kingdom), and could not be abused or
operated arbitrarily.

50. According to Mr Boys Smith, all persons involved in the selection
process would have had their attention specifically drawn to the
safeguards and limits set out in the primary legislation, which were
rigorously applied. Secondly, training was provided to all these
persons to emphasise the importance of strict adherence to the
operating procedures and safeguards in place. Thirdly, throughout the
relevant period operating procedures were in place to ensure that it
was not possible for any single individual to select and examine
material on an arbitrary and uncontrolled basis. Where, as part of his
intelligence gathering, an official wished to intercept and select
relevant information, he could not effect the interception himself. He
would have to take the request for interception and selection to
personnel in a different branch of the department, who would then
separately activate the technical processes necessary for the
interception and selection to be made. The requesting official would
have to set out, in his request, his justification for the selection.
Moreover, a record of the request was kept, so that it was possible
for others (senior management and the Commissioner) to check back on
the official’s request, to ensure that it was properly justified.
Conversely, it was not possible for the personnel in the branch of the
department implementing the technical interception processes to
receive the downloaded product of any interception and selection
process implemented by them. Therefore, they also could not conduct
unauthorised interception and gain access to material themselves.
Fourth, there was day-to-day practical supervision of those who
conducted the selection processes under section 3(2) warrants (“the
requesting officials”) by managers working physically in the same
room, who could and would where necessary ask the requesting officials
at any time to explain and justify what they were doing. The managers
also performed quality control functions in relation to the
intelligence reports generated by the requesting officials, and
routinely reviewed all intelligence reports incorporating intercepted
material that were drawn up by requesting officials for dissemination.
Fifth, throughout the relevant period, as was explained to all
personnel involved in the selection process, the independent
Commissioner had an unrestricted right to review the operation of the
selection process and to examine material obtained pursuant to it.
From the relevant records, it was possible to check on the
interception initiated by officials and, if necessary, to call for an
explanation. Each of the Commissioners during the relevant period
(Lords Lloyd, Bingham and Nolan) exercised his right to review the
operation of the selection processes, and each Commissioner declared
himself satisfied that the selection processes were being conducted in
a manner that was fully consistent with the provisions of the 1985
Act. By this combination of measures there were effective safeguards
in place against any risk of individual, combined or institutional
misbehaviour or action contrary to the terms of the legislation or
warrant. Finally, once the Intelligence Services Act 1994 had come
into force on 15 December 1994, it was possible for an aggrieved
individual to complain to the Tribunal.

51. As regards the processes described by the applicants as
“minimisation” and “dissemination”, safeguards in place during the
relevant period ensured that access to and retention of the raw
intercept material and any intelligence reports based on such material
were kept to the absolute minimum practicable, having regard to the
public interest served by the interception system. Relevant
information in the material selected and examined was disseminated in
the form of intelligence reports, usually compiled by the requesting
officials. As part of the safeguards under section 6 of the 1985 Act,
there were throughout the relevant period internal regulations
governing the manner in which intelligence reports were produced,
directed at all individuals engaged in producing intelligence reports
based on material selected from communications intercepted under the
section 3(2) warrant regime. The regulations stipulated, among other
things, that no information should be reported unless it clearly
contributed to a stated intelligence requirement conforming to one of
the purposes set out in section 2(2) of the 1985 Act. The regulations
also dealt specifically with the circumstances in which it was
appropriate to name specific individuals or organisations in the
intelligence reports. During the relevant period there was in place a
comprehensive security regime for handling all types of classified
material. Dissemination was restricted to those with a genuine “need
to know”, and was further limited to persons who had been security
vetted and briefed on how to handle it, with a view to ensuring
continued confidentiality.

52. The Government refuted the suggestion that, to comply with Article
8 § 2, the safeguards put in place in respect of the intercepted
material had themselves to comply with the “in accordance with the
law” criteria. In any event, the functions of the Commissioner and the
Tribunal were embodied in statutory provisions that were sufficiently
certain and accessible, and in assessing whether the “foreseeability”
requirements of Article 8 § 2 had been met, it was legitimate to take
into account the existence of general safeguards against abuse such as
these (the Government relied on Association for European Integration
and Human Rights and Ekimzhiev v. Bulgaria, no. 62540/00, §§ 77-94, 28
June 2007 and Christie v. the United Kingdom, no. 21482/93, Commission
decision of 27 June 1994). Moreover, the 1985 Act provided that
interception was criminal except where the Secretary of State had
issued a warrant and sections 2 and 3(2) set out in very clear terms
that, during the relevant period, any person in the United Kingdom who
sent or received any form of telecommunication outside Britain could
in principle have had it intercepted pursuant to such a warrant. The
provisions of primary legislation were, therefore, sufficient to
provide reasonable notice to individuals to the degree required in
this particular context, and provided adequate protection against
arbitrary interference. Article 8 § 2 did not require that the nature
of the “arrangements” made by the Secretary of State under section 6
of the 1985 Act be set out in legislation (see Malone v. the United
Kingdom, judgment of 2 August 1984, Series A no. 82, § 68), and for
security reasons it had not been possible to reveal such information
to the public, but the arrangements had been subject to review by the
Commissioners, each of whom had found them to be satisfactory (see
paragraph 33 above).

53. The Government submitted that the section 3(2) warrant regime was
proportionate and “necessary in a democratic society”. Democratic
States faced a growing threat from terrorism, and as communications
networks became more wide-ranging and sophisticated, terrorist
organisations had acquired ever greater scope to operate and co-
operate on a trans-national level. It would be a gross dereliction of
the Government’s duty to safeguard national security and the lives and
well-being of its population if it failed to take steps to gather
intelligence that might allow preventative action to be taken or if it
compromised the operational effectiveness of the surveillance methods
available to it. Within the United Kingdom the Government had
extensive powers and resources to investigate individuals and
organisations that might threaten the interests of national security
or perpetrate serious crimes, and it was therefore feasible for the
domestic interception regime to require individual addresses to be
identified before interception could take place. Outside the
jurisdiction, however, the ability of the Government to discover the
identity and location of individuals and organisations which might
represent a threat to national security was drastically reduced and a
broader approach was needed. Maintaining operational effectiveness
required not simply that the fact of interception be kept as secret as
appropriate; it was also necessary to maintain a degree of secrecy as
regards the methods by which such interception might be effected, to
prevent the loss of important sources of information.

54. The United Kingdom was not the only signatory to the Convention to
make use of a surveillance regime involving the interception of
volumes of communications data and the subsequent operation of a
process of selection to obtain material for further consideration by
government agencies. It was difficult to compare the law and practice
of other democratic States (such as the German system of strategic
monitoring examined by the Court in the Weber and Saravia case cited
above), since each country had in place a different set of safeguards.
For example, the United Kingdom did not permit intercepted material to
be used in court proceedings, whereas many other States did allow
this, and there were few, if any, direct equivalents to the
independent Commissioner system created by the 1985 Act. Moreover, it
was possible that the operational reach of the United Kingdom’s system
had had to be more extensive, given the high level of terrorist threat
directed at the United Kingdom during the period in question.

A. Admissibility

55. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.

B. Merits

1. Whether there was an interference

56. Telephone, facsimile and e-mail communications are covered by the
notions of “private life” and “correspondence” within the meaning of
Article 8 (see Weber and Saravia v. Germany (dec.), no. 54934/00, §
77, 29 June 2006, and the cases cited therein). The Court recalls its
findings in previous cases to the effect that the mere existence of
legislation which allows a system for the secret monitoring of
communications entails a threat of surveillance for all those to whom
the legislation may be applied. This threat necessarily strikes at
freedom of communication between users of the telecommunications
services and thereby amounts in itself to an interference with the
exercise of the applicants’ rights under Article 8, irrespective of
any measures actually taken against them (see Weber and Saravia, cited
above, § 78).

57. The Court notes that the Government are prepared to proceed, for
the purposes of the present application, on the basis that the
applicants can claim to be victims of an interference with their
communications sent to or from their offices in the United Kingdom and
Ireland. In any event, under section 3(2) the 1985 Act, the
authorities were authorised to capture communications contained within
the scope of a warrant issued by the Secretary of State and to listen
to and examine communications falling within the terms of a
certificate, also issued by the Secretary of State (see paragraphs
23-24 above). Under section 6 of the 1985 Act arrangements had to be
made regulating the disclosure, copying and storage of intercepted
material (see paragraph 27 above). The Court considers that the
existence of these powers, particularly those permitting the
examination, use and storage of intercepted communications constituted
an interference with the Article 8 rights of the applicants, since
they were persons to whom these powers might have been applied (see
Weber and Saravia, cited above, §§ 78-79).

2. Whether the interference was justified

58. Such an interference is justified by the terms of paragraph 2 of
Article 8 only if it is “in accordance with the law”, pursues one or
more of the legitimate aims referred to in paragraph 2 and is
“necessary in a democratic society” in order to achieve the aim or
aims (see Weber and Saravia, cited above, § 80).

3. Whether the interference was “in accordance with the law”

a. General principles

59. The expression “in accordance with the law” under Article 8 § 2
requires, first, that the impugned measure should have some basis in
domestic law; it also refers to the quality of the law in question,
requiring that it should be compatible with the rule of law and
accessible to the person concerned, who must, moreover, be able to
foresee its consequences for him (see, among other authorities,
Kruslin v. France, judgment of 24 April 1990, Series A no. 176-A, §
27; Huvig v. France, judgment of 24 April 1990, Series A no. 176-B, §
26; Lambert v. France, judgment of 24 August 1998, Reports of
Judgments and Decisions 1998-V, § 23; Perry v. the United Kingdom, no.
63737/00, § 45, ECHR 2003-IX; Dumitru Popescu v. Romania (No. 2), no.
71525/01, § 61, 26 April 2007).

60. It is not in dispute that the interference in question had a legal
basis in sections 1-10 of the 1985 Act (see paragraphs 16-27 above).
The applicants, however, contended that this law was not sufficiently
detailed and precise to meet the “foreseeability” requirement of
Article 8(2), given in particular that the nature of the
“arrangements” made under section 6(1)(b) was not accessible to the
public. The Government responded, relying on paragraph 68 of Malone
(cited above), that although the scope of the executive’s discretion
to carry out surveillance had to be indicated in legislation, “the
detailed procedures and conditions to be observed do not necessarily
have to be incorporated in rules of substantive law”.

61. The Court observes, first, that the above passage from Malone was
itself a reference to Silver and Others, also cited above, §§ 88-89.
There the Court accepted that administrative Orders and Instructions,
which set out the detail of the scheme for screening prisoners’
letters but did not have the force of law, could be taken into account
in assessing whether the criterion of foreseeability was satisfied in
the application of the relevant primary and secondary legislation, but
only to “the admittedly limited extent to which those concerned were
made sufficiently aware of their contents”. It was only on this basis
– that the content of the Orders and Instructions were made known to
the prisoners – that the Court was able to reject the applicants’
contention that the conditions and procedures governing interferences
with correspondence, and in particular the directives set out in the
Orders and Instructions, should be contained in the substantive law
itself.

62. More recently, in its admissibility decision in Weber and Saravia,
cited above, §§ 93-95, the Court summarised its case-law on the
requirement of legal “foreseeability” in this field as follows (and
see also Association for European Integration and Human Rights and
Ekimzhiev, cited above, §§ 75-77):

“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).”

63. It is true that the above requirements were first developed by the
Court in connection with measures of surveillance targeted at specific
individuals or addresses (the equivalent, within the United Kingdom,
of the section 3(1) regime). However, the Weber and Saravia case was
itself concerned with generalised “strategic monitoring”, rather than
the monitoring of individuals (cited above, § 18). The Court does not
consider that there is any ground to apply different principles
concerning the accessibility and clarity of the rules governing the
interception of individual communications, on the one hand, and more
general programmes of surveillance, on the other. The Court’s approach
to the foreseeability requirement in this field has, therefore,
evolved since the Commission considered the United Kingdom’s
surveillance scheme in its above-cited decision in Christie v. the
United Kingdom.

b. Application of the general principles to the present case

64. The Court recalls that section 3(2) of the 1985 Act allowed the
executive an extremely broad discretion in respect of the interception
of communications passing between the United Kingdom and an external
receiver, namely to intercept “such external communications as are
described in the warrant”. There was no limit to the type of external
communications which could be included in a section 3(2) warrant.
According to the applicants, 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”, and all communications falling within the specified
category would be physically intercepted (see paragraph 43 above). In
their observations to the Court, the Government accepted that, in
principle, any person who sent or received any form of
telecommunication outside the British Islands during the period in
question could have had such a communication intercepted under a
section 3(2) warrant (see paragraph 47 above). The legal discretion
granted to the executive for the physical capture of external
communications was, therefore, virtually unfettered.

65. Moreover, the 1985 Act also conferred a wide discretion on the
State authorities as regards which communications, out of the total
volume of those physically captured, were listened to or read. At the
time of issuing a section 3(2) interception warrant, the Secretary of
State was required to issue a certificate containing a description of
the intercepted material which he considered should be examined.
Again, according to the applicants, certificates were formulated in
general terms and related only to intelligence tasks and priorities,
such as, for example, “national security”, “preventing or detecting
serious crime” or “safeguarding the economic well-being of the United
Kingdom” (see paragraph 43 above). On the face of the 1985 Act, only
external communications emanating from a particular address in the
United Kingdom could not be included in a certificate for examination
unless the Secretary of State considered it necessary for the
prevention or detection of acts of terrorism (see paragraphs 23-24
above). Otherwise, the legislation provided that material could be
contained in a certificate, and thus listened to or read, if the
Secretary of State considered this was required in the interests of
national security, the prevention of serious crime or the protection
of the United Kingdom’s economy.

66. Under section 6 of the 1985 Act, the Secretary of State, when
issuing a warrant for the interception of external communications, was
called upon to “make such arrangements as he consider[ed] necessary”
to ensure that material not covered by the certificate was not
examined and that material that was certified as requiring examination
was disclosed and reproduced only to the extent necessary. The
applicants contend that material was selected for examination by an
electronic search engine, and that search terms, falling within the
broad categories covered by the certificates, were selected and
operated by officials (see paragraph 43 above). According to the
Government (see paragraphs 48-51 above), there were at the relevant
time internal regulations, manuals and instructions applying to the
processes of selection for examination, dissemination and storage of
intercepted material, which provided a safeguard against abuse of
power. The Court observes, however, that details of these
“arrangements” made under section 6 were not contained in legislation
or otherwise made available to the public.

67. The fact that the Commissioner in his annual reports concluded
that the Secretary of State’s “arrangements” had been complied with
(see paragraphs 32-33 above), while an important safeguard against
abuse of power, did not contribute towards the accessibility and
clarity of the scheme, since he was not able to reveal what the
“arrangements” were. In this connection the Court recalls its above
case-law to the effect that the procedures to be followed for
examining, using and storing intercepted material, inter alia, should
be set out in a form which is open to public scrutiny and knowledge.

68. The Court notes the Government’s concern that the publication of
information regarding the arrangements made by the Secretary of State
for the examination, use, storage, communication and destruction of
intercepted material during the period in question might have damaged
the efficacy of the intelligence-gathering system or given rise to a
security risk. However, it observes that the German authorities
considered it safe to include in the G10 Act, as examined in Weber and
Saravia (cited above), express provisions about the treatment of
material derived from strategic interception as applied to non-German
telephone connections. In particular, the G10 Act stated that the
Federal Intelligence Service was authorised to carry out monitoring of
communications only with the aid of search terms which served, and
were suitable for, the investigation of the dangers described in the
monitoring order and which search terms had to be listed in the
monitoring order (op. cit., § 32). Moreover, the rules on storing and
destroying data obtained through strategic monitoring were set out in
detail in section 3(6) and (7) and section 7(4) of the amended G10 Act
(see Weber and Saravia, cited above, § 100). The authorities storing
the data had to verify every six months whether those data were still
necessary to achieve the purposes for which they had been obtained by
or transmitted to them. If that was not the case, they had to be
destroyed and deleted from the files or, at the very least, access to
them had to be blocked; the destruction had to be recorded in minutes
and, in the cases envisaged in section 3(6) and section 7(4), had to
be supervised by a staff member qualified to hold judicial office. The
G10 Act further set out detailed provisions governing the
transmission, retention and use of data obtained through the
interception of external communications (op. cit., §§ 33-50). In the
United Kingdom, extensive extracts from the Code of Practice issued
under section 71 of the 2000 Act are now in the public domain (see
paragraph 40 above), which suggests that it is possible for a State to
make public certain details about the operation of a scheme of
external surveillance without compromising national security.

69. In conclusion, the Court does not consider that the domestic law
at the relevant time indicated with sufficient clarity, so as to
provide adequate protection against abuse of power, the scope or
manner of exercise of the very wide discretion conferred on the State
to intercept and examine external communications. In particular, it
did not, as required by the Court’s case-law, set out in a form
accessible to the public any indication of the procedure to be
followed for selecting for examination, sharing, storing and
destroying intercepted material. The interference with the applicants’
rights under Article 8 was not, therefore, “in accordance with the
law”.

70. It follows that there has been a violation of Article 8 in this
case.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

71. The applicants also complained under Article 13, which provides:

“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.

A. Admissibility

72. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.

B. Merits

73. However, in the light of its above finding that the system for
interception of external communications under the 1985 Act was not
formulated with sufficient clarity to give the individual adequate
protection against arbitrary interference, the Court does not consider
that it is necessary to examine separately the complaint under Article
13.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

74. Article 41 of the Convention provides:

“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.”

A. Damage

75. The applicant submitted that the application related to
allegations of unlawful interception of communications over a period
of approximately seven years (1990-1997), and claimed EUR 3,000 each,
making a total of EUR 9,000 in respect of non-pecuniary damage.

76. The Government referred to a number of other cases involving
covert surveillance where the Court held that the finding of a
violation was sufficient just satisfaction (Khan v. the United
Kingdom, no. 35394/97, ECHR 2000-V; Armstrong v. the United Kingdom,
no. 48521/99, 16 July 2002; Taylor-Sabori v. the United Kingdom, no.
47114/99, 22 October 2002; Hewitson v. the United Kingdom, no.
50015/99, 29 May 2003; Chalkley v. the United Kingdom, no. 63831/00,
12 June 2003) and submitted that no financial compensation for non-
pecuniary damage would be necessary in the present case.

77. In the circumstances of this case, the Court considers that the
finding of violation constitutes sufficient just satisfaction for any
non-pecuniary damage caused to the applicants.

B. Costs and expenses

78. The applicant also claimed GBP 7,596, excluding value added tax
(“VAT”) for the costs and expenses incurred before the Court.

79. The Government noted that counsel had acted throughout on a pro
bono basis, and submitted that the GBP 180 hourly rate charged by
Liberty was excessive. They proposed that GBP 120 per hour would be
more reasonable, giving a total of GBP 5,064.

80. The Court awards EUR 7,500 plus any VAT that may be chargeable.

C. Default interest

81. The Court considers it appropriate that the default interest
should be based on the marginal lending rate of the European Central
Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible;

2. Holds that there has been a violation of Article 8 of the
Convention;

3. Holds that there is no need to examine the complaint under Article
13 of the Convention;

4. Holds

(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;

5. Dismisses the remainder of the applicant’s claim for just
satisfaction.

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
Registrar President

LIBERTY AND OTHERS v. THE UNITED KINGDOM JUDGMENT

LIBERTY AND OTHERS v. THE UNITED KINGDOM JUDGMENT

---------------------------------------------------------------------------Britain is CONSTANTLY violating Human Rights.

There was, of course, the well-know case of torture in Northern
Ireland, brought by the Republic. The Republic won, of course.

There is a gang, condemned by eight Popes of Rome, to whom the secret
government of Britain belongs:
http://www.papalencyclicals.net/Clem12/c15inemengl.htm

They are a society with secrets. One secret is that they torture each
other, to force each other into terrorism.
http://www.niagarafallsreporter.com/hanchette143.html

The death of William James at the hands of Albert Eid, of the American
splinter-group mirrors the case of what the British gangsters were
doing to innocent Irish.

Here is another:
http://www.wsws.org/articles/2001/may2001/ire-m11.shtml

And another:
http://www.ukmm.org.uk/camp/hr/scarth.htm

In paragraph 17 of that last example, "Lord Justice Morritt" lies
under oath on behalf of the British government, and pretends that he
can dismiss WHOLESALE the European Convention on Human Rights just to
avoid a conviction under Article 6. Britain LOST.

In reality, according to many - including LEEDS UNIVERSITY - britain
helped formulate That Convention and signed in 1951. It only came into
force in 1953, so Britain was bound by Human Rights from the outset.

However, the reason for signing is REVERSED MORALS. It is a "virtue"
to deceive. So they sign the Convention, and by REVERSED LOGIC,
violate EVERY article.

Charles Douglas Wehner