Rules on intercept evidence not breach of human rights, say European Court

KENNEDY v. THE UNITED KINGDOM – 26839/05 [2010] ECHR 682 (18 May 2010) – Read judgment

The European Court of Human Rights has held that the UK’s Regulation of Investigatory Powers Act (RIPA) does not breach Article 8 of the European Convention on Human Rights, the right to private life or Article 6, the right to a fair trial. The judgment is timely, with the new Government debating at present whether intercept evidence should be allowed to be used in court.

The case has a long and intriguing history. On 23 December 1990, Mr Kennedy was arrested for drunkenness and taken to Hammersmith Police Station. He was held overnight in a cell shared by another detainee, Patrick Quinn. The next day, Mr Quinn was found dead with severe injuries. Mr Kennedy was charged with his murder. He alleged that the police had framed him for the murder in order to cover up their own wrongdoing. He was subsequently was found guilty of the murder of Mr Quinn and was sentenced to life imprisonment.

In February 1993, Mr Kennedy’s conviction was overturned on appeal. At a first retrial, one of the police officers, a key prosecution witness, failed to appear. He was subsequently declared mentally unstable and was withdrawn from the proceedings. Following a second retrial, Mr Kennedy was convicted manslaughter and sentenced to nine years’ imprisonment. The case was controversial on account of missing and conflicting police evidence which led some – including a number of Members of Parliament – to question the safety of the applicant’s conviction.

Following his release in 1996, Mr Kennedy became active in campaigning against miscarriages of justice. He started a removal business and although his business succeeded initially, he then began to experience interference with his business telephone calls. He alleged that local calls to his telephone were not being put through to him and that he was receiving a number of time-wasting hoax calls. He suspected that this was because his mail, telephone and email communications were being intercepted.

Mr Kennedy complained about an alleged interception of his communications, claiming a violation of Article 8. He further alleged that the hearing before the Investigatory Powers Tribunal was not attended by adequate safeguards as required under Article 6 and, under Article 13, that he had as a result been denied an effective remedy

No breach, and you still can’t find out if you were spied on

Ultimately, the Court held that the domestic law on interception of internal communications together with the clarifications 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 observed 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 highlighted the diligence with which the authorities implement RIPA and correct any technical or human errors which accidentally occur.

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 surveillance measures, insofar as they may have been applied to the applicant in the circumstances outlined in the present case, we found to be justified under Article 8 (2).

As to Article 6(1), the Court held:

… the restrictions on the procedure before the IPT did not violate the applicant’s right to a fair trial. In reaching this conclusion, the Court emphasises the breadth of access to the IPT enjoyed by those complaining about interception within the United Kingdom and the absence of any evidential burden to be overcome in order to lodge an application with the IPT. In order to ensure the efficacy of the secret surveillance regime, and bearing in mind the importance of such measures to the fight against terrorism and serious crime, the Court considers that the restrictions on the applicant’s rights in the context of the proceedings before the IPT were both necessary and proportionate and did not impair the very essence of the applicant’s Article 6 rights. (para 190)

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