European Court of Human Rights
1 July 2008
Facts
The Interception of Communications Act 1985 made it an offence intentionally to intercept communications by post or using a public telecommunications system. However, the Secretary of State was authorised to issue a warrant permitting the examination of communications if it was considered necessary in the interests of national security, to prevent or detect serious crime or to safeguard the State’s economic well-being. Warrants could be issued in respect of communications (whether internal or external) linked to a particular address or person, or to external communications generally, with no restriction on the person or premises concerned. The Act required to ensure safeguards against abuses of power which reportedly were put in place, but their precise details were not disclosed in the interests of national security.
Complaint
The applicants were British and 2 Irish civil liberties organisations. They alleged that their telephone, facsimile, email and data communications, including legally privileged and confidential information, had been intercepted.
Court’s ruling
The mere existence of legislation which allowed communications to be monitored secretly entailed a surveillance threat for all those to whom it might be applied and so constituted an interference with the applicants’ rights. The Act allowed the British authorities virtually unlimited discretion to intercept communications between the United Kingdom and an external receiver described in the warrant. Warrants covered broad classes of communications and, in principle, any person who sent or received any form of telecommunication outside the British Islands could have had their communication intercepted. The authorities also had wide discretion to decide which communications from those physically captured should be listened to or read.
Although there had been internal regulations, manuals and instructions to provide for procedures to protect against abuse of power, the nature of them had not been contained in legislation or otherwise made available to the public. Further, although the Government had expressed concern that the publication of information regarding those arrangements during the period in question might have damaged the efficiency of the intelligence-gathering system or given rise to a security risk, the Court noted that extensive extracts from the Interception of Communications Code of Practice were now in the public domain, which suggested that it was possible to make public certain details about the operation of a scheme of external surveillance without compromising national security.
In conclusion, domestic law at the relevant time had not indicated with sufficient clarity, 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. The interference was not therefore “in accordance with the law” and the Court found a violation of Article 8.