EHRM, 18-05-2010, nr. 26839/05

The applicant insisted that his communications had been intercepted. He maintained that there were reasonable grounds for believing that he had been subject to interception and submitted that objectively verifiable facts supported the possibility of interception, pointing to his long campaign regarding the alleged miscarriage of justice in his case and the allegation of police impropriety made at his re-trial.

Noting the Government's submission that neither preventing calls from being put through nor hoax calls amounted to interception for the purposes of RIPA, the applicant emphasised that such conduct clearly amounted to an interference for the purposes of Article 8 of the Convention. In the event that RIPA did not apply to such measures, he argued that the Government had failed to indicate the alternative legal regime put in place to prevent such interference with individuals' private lives as required by the positive obligations under Article 8.

Finally, and in any event, relying on Weber and Saravia v. Germany (dec.), no. 54934/00, § 78, ECHR 2006-XI, the applicant contended that he was not required to demonstrate that the impugned measures had actually been applied to him in order to establish an interference with his private life. He invited the Court to follow its judgment in Liberty and Others v. the United Kingdom, no. 58243/00, §§ 56 to 57, 1 July 2008, and find that the mere existence of a regime for surveillance measures entailed a threat of surveillance for all those to whom the legislation could be applied.

The Government accepted that if the applicant's complaint regarding the general Convention-compatibility of the RIPA scheme was admissible, then he could claim to be a victim without having to show that he had actually been the subject of interception, However, they argued that the Court had made it clear that, in a case argued on the basis that the intelligence authorities had in fact been engaging in unlawful surveillance, the principles set out in §§ 34 to 38 of the Court's judgment in Klass and Others v. Germany, 6 September 1978, Series A no. 28 did not apply and, instead, the applicant was required to substantiate his claim with evidence sufficient to satisfy the Court that there was a reasonable likelihood that unlawful interception had occurred (citing Halford v. the United Kingdom, 25 June 1997, § 57, Reports 1997-III; and Iliya Stefanov v. Bulgaria, no. 65755/01, § 49, 22 May 2008). In their view, the applicant had not established a reasonable likelihood of unlawful interception in his case, for four reasons:

The Government further argued that complaints regarding calls not being put through or hoax calls did not show that there had been any interception in the applicant's case. They pointed out that, under section 2(2) RIPA, preventing calls from being put through and hoax calls were excluded from the definition of interception (see paragraph 30 above). As such, these activities would not fall within the remit of RIPA. The Government further argued that there was no factual foundation for the applicant's claims that any interception was intended to intimidate him.

The applicant did not dispute that the surveillance of internal communications in the United Kingdom had a basis in domestic law, namely the provisions of RIPA. Nor did he dispute that both the relevant legislation and the Code were publicly available. However, he argued that the RIPA provisions, and in particular sections 5, 8 and 15 on the issuing of warrants and the relevant safeguards, were not in accordance with the law as required by Article 8 § 2 of the Convention as they did not meet the foreseeability requirement set out in the Court's jurisprudence. In particular, he alleged that section 8(1) RIPA, which stipulated the basic contents of an interception warrant, did not indicate with sufficient clarity how decisions as to which individuals were to be put under surveillance were made; that RIPA did not define the categories of persons who could have their telephones tapped; and that it did not clarify the procedures in place to regulate the interception and processing of intercept material. He contended that the safeguards referred to in section 15 RIPA were inadequate as they were subject to unknown ‘arrangements’ considered necessary by the Secretary of State. The other procedural safeguards in place including the possibility of launching proceedings before the IPT, were, in the applicant's view, also inadequate to protect against abuse.

The applicant relied on the Court's judgment in Liberty and Others, cited above, as to the lack of clarity of the relevant provisions of RIPA's predecessor, the Interception of Communications Act 1985, and argued that the changes introduced to the surveillance regime by RIPA were inadequate to address the flaws identified in that case. He concluded that any interference therefore automatically failed to meet the requirement that it must be in accordance with the law and relied in this regard on the conclusions of a report by a surveillance law expert instructed by him, Dr Goold, appended to his submissions. He further highlighted the conclusion of the Court in Liberty and Others, cited above, § 68, that the fact that extracts of the code of practice adopted under section 71 RIPA were in the public domain suggested that it was possible for a State to make public certain details about the operation of a scheme for external surveillance without compromising national security.

The applicant argued that the Court's decisions in Valenzuela Contreras v. Spain, 30 July 1998, Reports of Judgments and Decisions 1998-V; Huvig v. France, 24 April 1990, Series A no. 176-B; Kruslin v. France, 24 April 1990, Series A no. 176-A; Amann v. Switzerland [GC], no. 27798/95, ECHR 2000-II; Al-Nashif v. Bulgaria, no. 50963/99, 20 June 2002; and Rotaru v. Romania [GC], no. 28341/95, ECHR 2000-V had expanded on the issue of ‘foreseeability’ and indicated a departure from the narrower scope of earlier decisions which tolerated the restrictive extent to which national security had imposed blanket secrecy on the publication of surveillance procedures. This broader approach had been confirmed by the Court's recent ruling in Liberty and Others, cited above. The applicant argued that the RIPA scheme remained ‘unnecessarily opaque’ and that further details about the operation, beyond those currently included in the Code, should be made available in order to comply with the Convention requirements regarding clarity and precision.

As to the safeguards and the arrangements put in place by the Secretary of State under section 15 RIPA, the applicant contended that there was a circularity in the fact that the person responsible for issuing warrants was also responsible for the establishment of the safeguards. He referred to the Court's observation in Liberty and Others, cited above, § 66, that details of the arrangements were neither in the legislation nor otherwise in the public domain. As regards the role of the Commissioner, the applicant argued that, as the Court found in Liberty and Others, cited above, § 67, the existence of the Commissioner did not contribute towards the accessibility and clarity of the arrangements under section 15 RIPA as he was unable to reveal what the arrangements were.

More generally, the applicant alleged that the Government had failed to address properly the safeguards available to prevent abuse of power. He argued that the legislation failed to identify the nature of the offences which could give rise to an interception order, to define persons liable to have their telephones tapped, to set limits on the duration of telephone tapping and to explain the procedure to be followed in examining and storing data obtained, the precautions to be taken in communicating the data and the circumstances in which data could or should be destroyed (citing Weber and Saravia, cited above, § 95).

He argued in particular that in Weber and Saravia, the law under consideration set out the precise offences the prevention and detection of which could give rise to an interception order, which he alleged was not the case with RIPA. He pointed to the opinion of his expert, Dr Goold, that the definition of ‘serious crime’ in section 81(2)(b) RIPA (see paragraph 34 above) was excessively broad and did not refer to any specific offences by name, and Dr Goold's conclusion that it could not be said that the grounds for issuing a section 8(1) warrant, as set out in section 5(3) RIPA, were sufficiently clear so as to enable an individual to predict what sorts of conduct might give rise to secret surveillance. He further considered that there was no information as to how the categories of persons liable to have their telephones tapped were ‘strictly controlled’, as the Government suggested (see paragraph 142 below).

The Government submitted that any interference which may have arisen in the present case satisfied the requirements of Article 8 § 2. The Government emphasised the duty of democratic governments to uphold the criminal law and protect citizens from terrorist threats and organised crime. In order to discharge this duty, the power to intercept the communications of specific targets was necessary. They pointed to the Commissioner's consistent conclusions that the interception powers under RIPA were an invaluable weapon for the protection of national security and the fight against organised crime (see paragraphs 64 and 72 above). Further, in order for interception to yield useful intelligence, the fact of the interception, as well as the methods by which it could be effected, had to be kept secret. If possible targets were able to gain insight into sensitive interception techniques and capabilities, then they would be able to take steps to undermine the usefulness of any intelligence gathered against them. The Government explained that they had had experience of information about surveillance techniques being put in the public domain, which had led directly to the loss of important sources of intelligence. They insisted that their policy of ‘neither confirm nor deny’ was important to ensure the overall effectiveness of surveillance operations.

Generally, regarding the applicant's reliance on the Court's judgment in Liberty and Others, cited above, the Government emphasised that that case concerned the Interception of Communications Act 1985, and not RIPA. Accordingly, they argued, the Court had not given a view as to whether it considered that the provisions of RIPA satisfied the requirements of Article 8. In finding a violation of Article 8 in Liberty and Others as a result of the failure of the Government to provide any public indication of the procedure for selecting for examination, sharing, storing and destroying intercepted data, the Court referred specifically at § 68 of its judgment to the fact that under RIPA, the Government had published a code of practice giving details about the operation of the scheme. In the Government's view, the publication of the Code was a feature by which the RIPA scheme could be distinguished from its predecessor in a significant and relevant respect. They also contrasted the finding of the Court in Liberty and Others, § 66, as regards the former arrangements regarding safeguards under section 6 Interception of Communications Act with the section 15 RIPA arrangements and the relevant provisions of the Code.

On the question whether any interference was in accordance with the law, the Government considered, first, that the statutory provisions of RIPA provided a sufficient basis in domestic law for any interference. They noted that the applicant did not appear to dispute this. As to whether the law was accessible, the Government pointed out that both RIPA and the Code were public accessible. They concluded that the accessibility requirement was satisfied, again noting the absence of any dispute on the matter from the applicant.

Regarding foreseeability, the Government highlighted at the outset the special context of secret surveillance. Referring to, inter alia, Weber and Saravia, cited above, § 93, the Government emphasised that foreseeability could not mean that an individual should be able to foresee when the authorities were likely to intercept his communications so that he could adapt his conduct accordingly. However, they agreed that there needed to be clear, detailed rules on interception, as outlined in § 95 of the Court's judgment in Weber and Saravia to guard against the risk of arbitrary exercise of secret surveillance powers. The Court had recently clarified in Liberty and Others, cited above, §§ 67 to 69, that not every provision regulating secret surveillance had to be set out in primary legislation. The test was whether there was a sufficient indication of the safeguards in a form accessible to the public in order to avoid abuses of power (citing Weber and Saravia, § 95). The Government accordingly contended that account should be taken of all relevant circumstances, including the nature, scope and duration of possible measures, the grounds required for ordering them, the authorities competent to permit, carry out and supervise them, and the remedies provided by national law (citing Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, cited above, § 77). They also argued that the Court should consider any evidence as to the actual operation of the warrant system and whether the system appeared to be working properly or was in fact subject to abuse (referring to Association for European Integration and Human Rights and Ekimdzhiev, §§ 92 to 93).

Addressing each of the individual safeguards set out in Weber and Saravia in turn, the Government contended, first, as regards the nature of offences which could give rise to an interception order, that section 5(3) RIPA, supplemented by the Code and the relevant definitions provided in the Act, was sufficiently clear and precise in setting out the grounds on which a section 8(1) warrant could be issued. As to the applicant's particular complaint that the term ‘national security’ lacked clarity, the Government emphasised that the term was not criticised by the Court in Liberty and Others when it was considered in the context of RIPA's predecessor, a fact which was unsurprising given that the term was a frequently-used legislative concept in the legal systems of many Contracting States and appeared in Article 8 § 2 of the Convention itself. The Government invited the Court to follow the Commission in Christie v. the United Kingdom, no. 21482/93, Commission decision of 27 June 1994, in finding that the term ‘national security’ was sufficiently foreseeable for the purposes of Article 8, noting that the applicant had cited no authority to the contrary. The Government also contested the applicant's complaint that ‘serious crime’ was not sufficiently specific and that RIPA failed to clarify the exact offences for the prevention of which a section 8(1) warrant could be issued. They pointed out that nothing in Weber and Saravia, cited above, § 27, supported the proposition that the legislative framework had to refer to the relevant offences by name in order to comply with the foreseeability requirement. They concluded that ‘serious crime’, as defined in the Act, provided an adequate indication of the circumstances in which interception could be authorised.

Second, as regards the categories of persons liable to have their telephones tapped, the Government acknowledged that RIPA allowed any type of communication transmitted over a telecommunications system to be intercepted. However, the categories of persons liable to have their telephones tapped were strictly controlled by RIPA. The factors by reference to which interception was undertaken had to be specifically identified in the schedule to the warrant. Further, a person would only become a subject of interception, and a set of premises would only be named in an interception warrant, if the interception operation was necessary on one or more of the grounds listed in section 5(3) (see paragraphs 31 to 32 above). The Government disputed that the Court's conclusion in Weber and Saravia, cited above, § 97, was at odds with this approach as, in their submission, that judgment merely approved the approach taken in the G10 Act without ruling out other possible methods of satisfying the Article 8 § 2 requirements.

Third, RIPA set out strict limits regarding the duration of any interception activity and the circumstances in which a warrant could be renewed (see paragraphs 50 to 51 above).

Fourth, RIPA, supplemented by the Code, contained detailed provisions on the procedure to be followed for examining, using and storing the data obtained and the precautions to be taken when communicating the data to other parties. Although in principle an intercepting agency could listen to all intercepted material in order to determine whether it contained valuable intelligence, where it contained no such intelligence the material would be swiftly and securely destroyed. Section 15 RIPA provided an exhaustive definition of the ‘authorised purposes’ and, in particular, section 15(4) identified limits on the number of persons to whom intercept material could be disclosed (see paragraph 42 above). These provisions were supplemented by the provisions of chapter 6 of the Code (see paragraphs 45 to 47 above). In particular, paragraph 6.4 of the Code specified that disclosure could only be made to persons with security clearance and paragraph 6.9 provided for distribution lists of vetted persons to be maintained. Disclosure was further limited by the ‘need-to-know’ principle, which restricted both those who could gain access to intercept material and the extent of any such access. Paragraph 6.5 of the Code clarified that the obligation not to disclose intercept information applied to any person to whom such information had been disclosed. Any breach of these safeguards was an offence under section 19 RIPA (see paragraph 44 above). The requirement to keep records in respect of the making, distribution and destruction of intercept material also provided an important safeguard. Section 15(3) made it clear that intercept material had to be destroyed as soon as there were no longer grounds for retaining it as ‘necessary’ for any of the exhaustively defined authorised purposes. Where human or technical error had resulted in material being gathered where it should not have been, the intercept material was immediately destroyed. Finally, where intercept material was retained, paragraph 6.8 of the Code required it to be reviewed at appropriate intervals to ensure that the justification for its retention remained valid.

The Government emphasised that information concerning the arrangements put in place under section 15 RIPA had been published in the Code. However, in order to maintain the operational effectiveness of interception techniques, it was not possible to publish full details of the arrangements. In the view of the Government, the publication of any more detail than had already been published would be contrary to national security and prejudicial to the prevention and detection of serious crime. They argued that the decision as to how much information on safeguards could safely be put in the public domain without undermining the interests of national security or prejudicing the prevention and detection of serious crime fell within their margin of appreciation. It was also significant that the full details of the arrangements in place were made available to the Commissioner, who was required to keep them under review. The Government emphasised that the Commissioner's approval was sought and given in respect of the safeguard documents either before or shortly after the entry into force of RIPA (see paragraph 63 above). They further emphasised that the Commissioner had expressed his satisfaction with the section 15 safeguards in every report prepared since 2000. They referred in particular to the Commissioner's 2002 and 2004 reports (see paragraphs 68 to 69 above).

In conclusion, the Government contended that in light of the detail in the legislation and the applicable code, the RIPA regime satisfied the requirement of lawfulness.

The Government also insisted that any interference pursued a legitimate aim. The Government emphatically denied, in this regard, the applicant's allegation that interception was being used to intimidate him and undermine his business activities. The three relevant objectives set out in section 5(3) RIPA, namely safeguarding national security, preventing or detecting serious crime and safeguarding the economic well-being of the United Kingdom, were all legitimate aims for the purposes of Article 8(2).

As to proportionality, the Government pointed to the fact that the Court had already accepted that secret surveillance could be necessary in a democratic society (see Klass and Others, cited above, § 48) and argued that the surveillance regime in RIPA was necessary and proportionate. The Government further argued that States enjoyed a fairly wide margin of appreciation when legislating in this field (citing Weber and Saravia, § 106). They reiterated that the protection of national security in particular was a heavy political responsibility affecting the whole population. Decisions in this area accordingly required a democratic legitimacy which could not be provided by the Court. This had been implicitly recognised by the Court in its Klass and Others judgment, cited above, § 49.

The Government accepted that in order to demonstrate respect for Article 8(2), there had to be adequate and effective guarantees against abuse of power. They reiterated that the assessment of whether such guarantees were present had to be made in light of all the circumstances of the case. In respect of the surveillance regime applicable in the United Kingdom, the Government emphasised that any interception without lawful authority was a criminal offence under section 1 RIPA (see paragraph 29 above); that the Secretary of State personally issued and modified warrants (see paragraph 38 above); and that guidance was publicly available in the form of the Code. They further pointed to the additional safeguards available in the form of the section 15 safeguards, the oversight of the Commissioner and the jurisdiction of the IPT. They concluded that the RIPA regime contained adequate and effective guarantees against abuse. The involvement of Secretaries of State in the issuing of an interception warrant provided a real and practical safeguard in the system, as demonstrated by the findings of the Commissioner as to the care and attention they demonstrated in their warrantry work (see paragraphs 62, 67 and 71 above). Further, it was significant that none of the Commissioners' reports referred to any deliberate breach of the RIPA provisions or any unlawful use of interception powers to intimidate a person. Any errors or breaches which had arisen had been the result of technical or human error and had been promptly corrected upon their discovery. As to the jurisdiction of the IPT, the Government emphasised that a challenge could be brought at any time by a person who suspected that his communications were being intercepted. They contrasted this unlimited jurisdiction with the legal regime at issue in Weber and Saravia where judicial oversight was limited to cases where an individual had been notified that measures had been taken against him. The applicant in the present case was able to bring his complaint before two senior judges, who ruled that there was no unlawful interception in his case.

In conclusion, the Government invited the Court to find that there had been no violation of Article 8 in the present case.

The requirement that any interference must be ‘in accordance with the law’ under Article 8 § 2 will only be met where three conditions are satisfied. First, the impugned measure must have some basis in domestic law. Second, the domestic law must be compatible with the rule of law and accessible to the person concerned. Third, the person affected must be able to foresee the consequences of the domestic law for him (see, among many other authorities, Rotaru v. Romania, cited above, § 52; Liberty and Others, cited above, § 59; and Iordachi and Others, cited above, § 37).

The Court has held on several occasions that the reference to ‘foreseeability’ in the context of interception of communications cannot be the same as in many other fields (see Malone, cited above, § 67; Leander v. Sweden, 26 March 1987, § 51, Series A no. 116; Association for European Integration, cited above, § 79; and Al-Nashif, cited above, § 121). In its admissibility decision in Weber and Saravia, cited above, §§ 93 to 95, the Court summarised its case-law on the requirement of legal ‘foreseeability’ in this field:

As to the question whether an interference was ‘necessary in a democratic society’ in pursuit of a legitimate aim, the Court recalls that powers to instruct secret surveillance of citizens are only tolerated under Article 8 to the extent that they are strictly necessary for safeguarding democratic institutions. In practice, this means that there must be adequate and effective guarantees against abuse. The assessment depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to authorise, carry out and supervise them, and the kind of remedy provided by the national law (see Klass and Others, cited above, §§ 49 to 50; and Weber and Saravia, cited above, § 106).

The Court has acknowledged that the Contracting States enjoy a certain margin of appreciation in assessing the existence and extent of such necessity, but this margin is subject to European supervision. The Court has to determine whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the ‘interference’ to what is ‘necessary in a democratic society’. In addition, the values of a democratic society must be followed as faithfully as possible in the supervisory procedures if the bounds of necessity, within the meaning of Article 8 § 2, are not to be exceeded (see Kvasnica v. Slovakia, no. 72094/01, § 80, 9 June 2009).

The Court recalls that it has found there to be an interference under Article 8 § 1 in respect of the applicant's general complaint about the RIPA provisions and not in respect of any actual interception activity allegedly taking place. Accordingly, in its examination of the justification for the interference under Article 8 § 2, the Court is required to examine the proportionality of the RIPA legislation itself and the safeguards built into the system allowing for secret surveillance, rather than the proportionality of any specific measures taken in respect of the applicant. In the circumstances, the lawfulness of the interference is closely related to the question whether the ‘necessity’ test has been complied with in respect of the RIPA regime and it is therefore appropriate for the Court to address jointly the ‘in accordance with the law’ and ‘necessity’ requirements (see Kvasnica, cited above, § 84). Further, the Court considers it clear that the surveillance measures permitted by RIPA pursue the legitimate aims of the protection of national security, the prevention of crime and the protection of the economic well-being of the country. This was not disputed by the parties.

In order to assess whether the RIPA provisions meet the foreseeability requirement, the Court must first examine whether the provisions of the Code can be taken into account insofar as they supplement and further explain the relevant legislative provisions. In this regard, the Court refers to its finding in Silver and Others v. the United Kingdom, 25 March 1983, §§ 88 to 89, Series A no. 61 that administrative orders and instructions concerning the scheme for screening prisoners' letters established a practice which had to be followed save in exceptional circumstances and that, as a consequence, although they did not themselves have the force of law, to the extent to which those concerned were made sufficiently aware of their contents they could be taken into account in assessing whether the criterion of foreseeability was satisfied in the application of the Prison Rules.

In the present case, the Court notes, first, that the Code is a public document and is available on the Internet (see paragraphs 26 and 28 above). Prior to its entry into force, it was laid before Parliament and approved by both Houses (see paragraph 26 above). Those exercising duties relating to interception of communications must have regard to its provisions and the provisions of the Code may be taken into account by courts and tribunals (see paragraph 27 above). In light of these considerations, the Court finds that the provisions of the Code can be taken into account in assessing the foreseeability of the RIPA regime.

The Court will therefore examine the RIPA regime with reference to each of the safeguards and the guarantees against abuse outlined in Weber and Saravia (see paragraphs 152 and 153 above) and, where relevant, to its findings in respect of the previous legislation at issue in Liberty and Others, cited above.

As to the nature of the offences, the Court emphasises that the condition of foreseeability does not require States to set out exhaustively by name the specific offences which may give rise to interception. However, sufficient detail should be provided of the nature of the offences in question. In the case of RIPA, section 5 provides that interception can only take place where the Secretary of State believes that it is necessary in the interests of national security, for the purposes of preventing or detecting serious crime or for the purposes of safeguarding the economic well-being of the United Kingdom (see paragraphs 31 to 32 above). The applicant criticises the terms ‘national security’ and ‘serious crime’ as being insufficiently clear. The Court disagrees. It observes that the term ‘national security’ is frequently employed in both national and international legislation and constitutes one of the legitimate aims to which Article 8 § 2 itself refers. The Court has previously emphasised that the requirement of ‘foreseeability’ of the law does not go so far as to compel States to enact legal provisions listing in detail all conduct that may prompt a decision to deport an individual on ‘national security’ grounds. By the nature of things, threats to national security may vary in character and may be unanticipated or difficult to define in advance (Al-Nashif, cited above, § 121). Similar considerations apply to the use of the term in the context of secret surveillance. Further, additional clarification of how the term is to be applied in practice in the United Kingdom has been provided by the Commissioner, who has indicated that it allows surveillance of activities which threaten the safety or well-being of the State and activities which are intended to undermine or overthrow Parliamentary democracy by political, industrial or violent means (see paragraph 33 above). As for ‘serious crime’, this is defined in the interpretative provisions of the Act itself and what is meant by ‘detecting’ serious crime is also explained in the Act (see paragraphs 34 to 35 above). The Court is of the view that the reference to serious crime, together with the interpretative clarifications in the Act, gives citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to secret surveillance measures. The Court therefore considers that, having regard to the provisions of RIPA, the nature of the offences which may give rise to an interception order is sufficiently clear (compare and contrast Iordachi and Others, cited above, § 46).

The Court observes that under RIPA, it is possible for the communications of any person in the United Kingdom to be intercepted. However, it should be recalled that, in contrast to the Liberty and Others case which concerned the legislation on interception of communications between the United Kingdom and any other country, the present case concerns internal communications, i.e. communications within the United Kingdom. Further, the legislation must describe the categories of persons who, in practice, may have their communications intercepted. In this respect, the Court observes that there is an overlap between the condition that the categories of persons be set out and the condition that the nature of the offences be clearly defined. The relevant circumstances which can give rise to interception, discussed in the preceding paragraph, give guidance as to the categories of persons who are likely, in practice, to have their communications intercepted. Finally, the Court notes that in internal communications cases, the warrant itself must clearly specify, either by name or by description, one person as the interception subject or a single set of premises as the premises in respect of which the warrant is ordered (see paragraphs 40 to 41 above). Names, addresses, telephone numbers and other relevant information must be specified in the schedule to the warrant. Indiscriminate capturing of vast amounts of communications is not permitted under the internal communications provisions of RIPA (cf. Liberty and Others, cited above, § 64). The Court considers that, in the circumstances, no further clarification in the legislation or the Code of the categories of persons liable to have their communications intercepted can reasonably be required.

In respect of the duration of any telephone tapping, the Act clearly stipulates, first, the period after which an interception warrant will expire and, second, the conditions under which a warrant can be renewed (see paragraph 50 to 51 above). Although a warrant can be renewed indefinitely, the Secretary of State himself must authorise any renewal and, upon such authorisation, must again satisfy himself that the warrant remains necessary on the grounds stipulated in section 5(3) (see paragraph 51 above). In the context of national security and serious crime, the Court observes that the scale of the criminal activities involved is such that their planning often takes some time. Subsequent investigations may also be of some duration, in light of the general complexity of such cases and the numbers of individuals involved. The Court is therefore of the view that the overall duration of any interception measures will depend on the complexity and duration of the investigation in question and, provided that adequate safeguards exist, it is not unreasonable to leave this matter for the discretion of the relevant domestic authorities. The Code explains that the person seeking the renewal must make an application to the Secretary of State providing an update and assessing the value of the interception operation to date. He must specifically address why he considers that the warrant remains necessary on section 5(3) grounds (see paragraph 54 above). Further, under section 9(3) RIPA, the Secretary of State is obliged to cancel a warrant where he is satisfied that the warrant is no longer necessary on section 5(3) grounds (see paragraph 52 above). There is also provision in the Act for specific factors in the schedule to the warrant to be deleted where the Secretary of State considers that they are no longer relevant for identifying communications from or to the interception subject (see paragraph 53 above). The Code advises that the duty on the Secretary of State to cancel warrants which are no longer necessary means, in practice, that intercepting agencies must keep their warrants under continuous review (see paragraph 55 above). The Court concludes that the provisions on duration, renewal and cancellation are sufficiently clear.

As regards the procedure for examining, using and storing the data, the Government indicated in their submissions that, under RIPA, an intercepting agency could, in principle, listen to all intercept material collected (see paragraph 144 above). The Court recalls its conclusion in Liberty and Others, cited above, § 65, that the authorities' discretion to capture and listen to captured material was very wide. However, that case, unlike the present case, involved external communications, in respect of which data were captured indiscriminately. Contrary to the practice under the Interception of Communications Act 1985 concerning external communications, interception warrants for internal communications under RIPA relate to one person or one set of premises only (cf. Liberty and Others, cited above, § 64), thereby limiting the scope of the authorities' discretion to intercept and listen to private communications. Moreover, any captured data which are not necessary for any of the authorised purposes must be destroyed.

As to the general safeguards which apply to the processing and communication of intercept material, the Court observes that section 15 RIPA imposes a duty on the Secretary of State to ensure that arrangements are in place to secure any data obtained from interception and contains specific provisions on communication of intercept material (see paragraph 42 above). Further details of the arrangements are provided by the Code. In particular, the Code strictly limits the number of persons to whom intercept material can be disclosed, imposing a requirement for the appropriate level of security clearance as well as a requirement to communicate data only where there is a ‘need to know’. It further clarifies that only so much of the intercept material as the individual needs to know is to be disclosed and that where a summary of the material would suffice, then only a summary should be disclosed. The Code requires intercept material, as well as copies and summaries of such material, to be handled and stored securely to minimise the risk of threat or loss. In particular, it must be inaccessible to those without the necessary security clearance (see paragraphs 46 to 47 above). A strict procedure for security vetting is in place (see paragraph 48 above). In the circumstances, the Court is satisfied that the provisions on processing and communication of intercept material provide adequate safeguards for the protection of data obtained.

As far as the destruction of intercept material is concerned, section 15(3) RIPA requires that the intercept material and any related communications data, as well as any copies made of the material or data, must be destroyed as soon as there are no longer any grounds for retaining them as necessary on section 5(3) grounds (see paragraph 42 above). The Code stipulates that intercept material must be reviewed at appropriate intervals to confirm that the justification for its retention remains valid (see paragraph 55 above).

The Code also requires intercepting agencies to keep detailed records of interception warrants for which they have applied (see paragraph 56 above), an obligation which the Court considers is particularly important in the context of the powers and duties of the Commissioner and the IPT (see paragraphs 166 to 167 below)

As regards supervision of the RIPA regime, the Court observes that apart from the periodic review of interception warrants and materials by intercepting agencies and, where appropriate, the Secretary of State, the Interception of Communications Commissioner established under RIPA is tasked with overseeing the general functioning of the surveillance regime and the authorisation of interception warrants in specific cases. He has described his role as one of protecting members of the public from unlawful intrusion into their private lives, of assisting the intercepting agencies in their work, of ensuring that proper safeguards are in place to protect the public and of advising the Government and approving the safeguard documents (see paragraph 70 above). The Court notes that the Commissioner is independent of the executive and the legislature and is a person who holds or has held high judicial office (see paragraph 57 above). He reports annually to the Prime Minister and his report is a public document (subject to the non-disclosure of confidential annexes) which is laid before Parliament (see paragraph 61 above). In undertaking his review of surveillance practices, he has access to all relevant documents, including closed materials and all those involved in interception activities have a duty to disclose to him any material he requires (see paragraph 59 above). The obligation on intercepting agencies to keep records ensures that the Commissioner has effective access to details of surveillance activities undertaken. The Court further notes that, in practice, the Commissioner reviews, provides advice on and approves the section 15 arrangements (see paragraphs 59 and 68 above). The Court considers that the Commissioner's role in ensuring that the provisions of RIPA and the Code are observed and applied correctly is of particular value and his biannual review of a random selection of specific cases in which interception has been authorised provides an important control of the activities of the intercepting agencies and of the Secretary of State himself.

The Court recalls that it has previously indicated that in a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge (see Klass and Others, cited above, § 56). In the present case, the Court highlights the extensive jurisdiction of the IPT to examine any complaint of unlawful interception. Unlike in many other domestic systems (see, for example, the G 10 Law discussed in the context of Klass and Others and Weber and Saravia, both cited above), any person who suspects that his communications have been or are being intercepted may apply to the IPT (see paragraph 76 above). The jurisdiction of the IPT does not, therefore, depend on notification to the interception subject that there has been an interception of his communications. The Court emphasises that the IPT is an independent and impartial body, which has adopted its own rules of procedure. The members of the tribunal must hold or have held high judicial office or be experienced lawyers (see paragraph 75 above). In undertaking its examination of complaints by individuals, the IPT has access to closed material and has the power to require the Commissioner to provide it with any assistance it thinks fit and the power to order disclosure by those involved in the authorisation and execution of a warrant of all documents it considers relevant (see paragraph 78 above). In the event that the IPT finds in the applicant's favour, it can, inter alia, quash any interception order, require destruction of intercept material and order compensation to be paid (see paragraph 80 above). The publication of the IPT's legal rulings further enhances the level of scrutiny afforded to secret surveillance activities in the United Kingdom (see paragraph 89 above).

Finally, the Court observes that the reports of the Commissioner scrutinise any errors which have occurred in the operation of the legislation. In his 2007 report, the Commissioner commented that none of the breaches or errors identified were deliberate and that, where interception had, as a consequence of human or technical error, unlawfully taken place, any intercept material was destroyed as soon as the error was discovered (see paragraph 73 above). There is therefore no evidence that any deliberate abuse of interception powers is taking place.

In the circumstances, the Court considers that the domestic law on interception of internal communications together with the clarifications brought by the publication of the Code indicate with sufficient clarity the procedures for the authorisation and processing of interception warrants as well as the processing, communicating and destruction of intercept material collected. The Court further observes that there is no evidence of any significant shortcomings in the application and operation of the surveillance regime. On the contrary, the various reports of the Commissioner have highlighted the diligence with which the authorities implement RIPA and correct any technical or human errors which accidentally occur (see paragraphs 62, 67, 71 and 73 above). Having regard to the safeguards against abuse in the procedures as well as the more general safeguards offered by the supervision of the Commissioner and the review of the IPT, the impugned surveillance measures, insofar as they may have been applied to the applicant in the circumstances outlined in the present case, are justified under Article 8 § 2.

There has accordingly been no violation of Article 8 of the Convention.