Information Note on the Court’s case-law No. 110
July 2008
Liberty and Others v. the United Kingdom - 58243/00
Judgment 1.7.2008 [Section IV]
Article 8
Article 8-1
Respect for correspondence
Interception by the Ministry of Defence of the external communications of civil-liberties organisations on the basis of a warrant issued under wide discretionary powers: violation
Facts: The Interception of Communications Act 1985 made it an offence intentionally to intercept communications by post or by means of 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 (under section 3(2) of the Act) to external communications generally, with no restriction on the person or premises concerned. Section 6 of the Act required the Secretary of State to make such arrangements as he considered necessary to ensure safeguards against abuses of power. Arrangements were reportedly put in place, but their precise details were not disclosed in the interests of national security. The Act also provided for a tribunal (the Interception of Communications Tribunal – ICT) to investigate complaints from any person who believed their communications had been intercepted and for the appointment of a Commissioner with reporting and review powers.
The applicants were a British and two Irish civil-liberties organisations. They alleged that between 1990 and 1997 their telephone, facsimile, e-mail and data communications, including legally privileged and confidential information, had been intercepted by an Electronic Test Facility operated by the British Ministry of Defence. Although they had lodged complaints with the ICT, the Director of Public Prosecutions and the Investigatory Powers Tribunal (IPT) challenging the lawfulness of the interceptions, the domestic authorities found that there had been no contravention of the 1985 Act. The IPT specifically found that the right to intercept and access material covered by a warrant, and the criteria by reference to which it was exercised, were sufficiently accessible and foreseeable to be in accordance with law. (The 1985 Act has now been replaced).
Law: 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. Section 3(2) of the 1985 Act allowed the British authorities a virtually unlimited discretion to intercept any communications between the United Kingdom and an external receiver described in the warrant. Warrants covered very broad classes of communications and, in principle, any person who sent or received any form of telecommunication outside the British Islands during the period in question 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 during the relevant period there had been internal regulations, manuals and instructions to provide for procedures to protect against abuse of power, and although the Commissioner appointed under the 1985 Act to oversee its workings had reported each year that the “arrangements” were satisfactory, the nature of those “arrangements” 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, 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 had not set out in a form accessible to the public any indication of the procedure to be followed for examining, sharing, storing and destroying intercepted material. The interference was not therefore “in accordance with the law”.
Conclusion: violation (unanimously).
Article 41 – Finding of a violation constituted sufficient just satisfaction for any non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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