CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 18 mai 2010

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margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s48DB3670 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sF8DCB537 { width:16.53pt; display:inline-block } .s30B52FCF { width:208.1pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }       FOURTH SECTION             CASE OF KENNEDY v. THE UNITED KINGDOM   (Application no. 26839/05)               JUDGMENT     STRASBOURG   18 May 2010   FINAL   18/08/2010   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kennedy v. the United Kingdom , The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Lech Garlicki, President ,   Nicolas Bratza,   Giovanni Bonello,   Ljiljana Mijović,   Päivi Hirvelä,   Ledi Bianku,   Nebojša Vučinić, judges , and Lawrence Early, Section Registrar , Having deliberated in private on 27 April 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 26839/05) 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 a British national, Mr Malcolm Kennedy (“the applicant”), on 12 July 2005. 2.     The applicant was represented by N. Mole of the AIRE Centre, a non-governmental organisation based in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms   E.   Willmott of the Foreign and Commonwealth Office. 3.     The applicant 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. 4.     On 14 November 2008 the Vice-President of the Fourth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Background facts 5 .     On 23 December 1990, the applicant 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. The applicant was charged with his murder. The applicant alleged that the police had framed him for the murder in order to cover up their own wrongdoing. In September 1991, the applicant was found guilty of the murder of Mr Quinn and was sentenced to life imprisonment. In February 1993, his 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, the applicant was convicted in 1994 of manslaughter and sentenced to nine years' imprisonment. The case was controversial in the United Kingdom 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. 6.     In 1996, the applicant was released from prison. Following his release, he became active in campaigning against miscarriages of justice generally. He subsequently started a removal business called Small Moves, undertaking small moves and van hire in London. Although his business did well at the beginning, he subsequently 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. The applicant suspected that this was because his mail, telephone and email communications were being intercepted. As a result of the interference, the applicant's business began to suffer. 7 .     The applicant believed that the interception of his communications was directly linked to his high profile case and his subsequent involvement in campaigning against miscarriages of justice. He alleged that the police and security services were continually and unlawfully renewing an interception warrant – originally authorised for the criminal proceedings against him – in order to intimidate him and undermine his business activities. B.     Domestic proceedings 8 .     On 10 July 2000 the applicant made subject access requests to MI5 and GCHQ (the United Kingdom's intelligence agencies responsible for national security) under the Data Protection Act 1998 (“DPA” – see paragraphs 21 to 22 below). The object of the requests was to discover whether information about him was being processed by the agencies and to obtain access to the content of the information. Both requests were refused on the basis that the information requested was exempt from the disclosure requirements of the 1998 Act on the grounds of national security under certificates issued by the Secretary of State on 22 July 2000 (MI5) and 30   July 2000 (GCHQ). 9 .     On 6 July 2001 the applicant lodged two complaints with the Investigatory Powers Tribunal (“IPT”). First, the applicant complained under sections 65(2)(b) and 65(4) of the Regulation of Investigatory Powers Act 2000 (“RIPA” – see paragraphs 25 to 80 below) that his communications were being intercepted in “challengeable circumstances”, within the meaning of section 65(7) RIPA (i.e. under an interception warrant or in circumstances in which there ought to have been an interception warrant or where consideration ought to have been given to obtaining an interception warrant). Second, the applicant complained under sections 6(1) and 7(1) of the Human Rights Act 1998 (“HRA”) and section 65(2)(a) RIPA that there was an unlawful interference with his rights under Article 8 of the Convention. 10 .     The applicant's Grounds of Claim and Complaint outlined the grounds for bringing the proceedings as follows: “4(a) That the authorities' conduct was, and is, incompatible with his rights under Article 8 of the Convention and a violation of equivalent rights of his at common law. Such conduct is unlawful as a result of HRA s. 6(1) and forms the basis for a complaint under RIPA s. 65. (b) To the extent any such conduct purports to have the authority of a warrant issued or renewed under RIPA Part I or the corresponding predecessor provisions of the Interception of Communications Act 1985 (“IOCA”), the issue and renewal of that warrant, as well as the conduct itself, has at all times lacked the necessary justification, whether under the express provisions of RIPA Part I (or IOCA), Article 8(2) of the Convention, or the general law. (c) Moreover the authorities' conduct was and is unlawful because in breach of the requirements of the Data Protection Act 1998 (“DPA”). Conduct in breach of those requirements takes place in challengeable circumstances under RIPA s. 65(4) and (7) and is also incompatible with the Complainant's rights under Article 8 of the Convention. 5. In addition, the Complainant relies in these proceedings on his right to a fair hearing under Article 6(1) of the Convention. In light of that right, the Complainant makes certain submissions about the way in which these proceedings ought to be conducted ...” 11 .     The applicant requested specific directions regarding the conduct of the proceedings in order to ensure the protection of his Convention rights under Article 6   §   1. In particular, he requested that his arguments and evidence be presented at an oral hearing; that all hearings be conducted in public; that there be mutual disclosure and inspection between the parties of all witness statements and evidence upon which parties sought to rely and exchange of skeleton arguments in relation to planned legal submissions; that evidence of each party be heard in the presence of the other party or their legal representatives, with oral evidence being open to cross-examination by the other party; that any opinion received from a Commissioner be disclosed to the parties, who would have the opportunity to make oral representations in light of it; that each party be able to apply for a derogation from any of the above in relation to a particular piece of evidence; and that, following its final determination, the IPT state its findings and give reasons for its conclusions on each relevant issue. He argued that to the extent that the IPT's rules of procedure (see paragraphs 84 to 87 below) prevented the directions sought, they were incompatible with his right to a fair hearing. 12 .     The Grounds of Claim and Complaint referred to the applicant's belief that his communications were being intercepted and that any warrant in place was being continually renewed. 13 .     Paragraph 13 of the Grounds of Claim and Complaint noted: “So far as the proceedings are brought in reliance on HRA s. 7(1)(a) or (b), the Complainant submits that: (a) The interception, and retention or other processing of intercept product, by any of the Respondents amounts to an interference with the Complainant's right to respect for private life and correspondence protected by Article 8(1) of the Convention; (b) The interception and processing have at no time been in accordance with the law as required by Article 8(2); (c) The interception and its purported authorisation (if any), and processing, have at no time been justified as necessary in a democratic society as required by Article   8(2).” 14 .     Paragraph 14 of the Grounds of Claim and Complaint expanded on the applicant's submissions: “In particular, the Complainant submits that: (a) the proper inference from the circumstances described by the Complainant, amplified by the refusal of the [authorities] to deny the activities alleged, is that it is established on the balance of probabilities that the interception and processing took place. At minimum there is a reasonable likelihood that interception and processing ... has taken place and continues to take place ( Hewitt and Harman v. UK , 12175/86, EComHR Report 9.5.89, paras. 26-32). (b) The interception is not in accordance with the law so far as involving a breach of any requirement of the DPA (including the Data Protection Principles) ... (c) The complainant poses no risk to national security nor in his case could any other ground for authorising interception of his communications reasonably be considered to exist. It cannot be said that interception of his communications has at any material time been a necessary or proportionate interference ... with his rights under Article 8(1).” 15 .     As to remedies, the Grounds of Claim and Complaint noted the following: “17. If the Tribunal finds that the Complainant succeeds on the claim or complaint, it is asked to make ... : (a) a final order prohibiting each Respondent from intercepting any communication by the Complainant ... or retaining or otherwise processing the product of any such interception, except on the grounds, and subject to the procedure, provided for by RIPA Part I; (b) an order ... quashing or cancelling any warrant or authorisation relating to any such interception; (c) an order requiring the destruction of any product of such interception ... (d) an award of compensation ... and/or damages ... for the loss and damage sustained by the Complainant in consequence of the matters complained of (including economic loss resulting from interference with his business communications).” 16 .     On 23 January 2003, the IPT, presided over by Lord Justice Mummery, issued a joint Ruling on Preliminary Issues of Law in the applicant's case together with a case involving a complaint by British-Irish Rights Watch and others in which a similar challenge to the IPT's Rules was made (see paragraphs 84 to 87 below). 17 .     On 9 December 2004, the IPT, again presided over by Lord Justice Mummery, issued a second ruling on preliminary issues of law in the applicant's case. In the introduction to its ruling, the IPT summarised the case before it as follows: “1. On 6 July 2001 the Complainant made (a) a complaint to the Tribunal under the Regulation of Investigatory Powers Act ... and (b) a claim under the Human Rights Act 1998 ... in respect of alleged ongoing interception by one or more of the respondent agencies (the Security Service, GCHQ and the Commissioner of Police for the Metropolis) over a period dating back to June 1996 ... 2. The Complainant also alleges harassment, intrusive surveillance, interference with property, removal of documents, interference with a web site and e-mails and interception of privileged communications by the respondent agencies. 3. The Complainant seeks a final order prohibiting the agencies from intercepting any communication by him in the course of its transmission by means of a telecommunications system or retaining or otherwise processing the product of any such interception except on the grounds and subject to the procedure provided by RIPA Part I. 4. He also seeks an order requiring the destruction of any product of such interception held by each respondent, whether or not obtained pursuant to any warrant or authorisation; and an award of compensation under s 67(7) RIPA and/or damages sustained by the Complainant in consequence of the matters complained of.” 18.     The ruling dealt with a number of matters relating to the extent of its jurisdiction in respect of the applicant's complaints relating to conduct prior to the entry into force of RIPA. 19 .     Following its ruling of 9 December 2004, the IPT proceeded to examine the applicant's specific complaints in private. 20 .     On 17 January 2005, the IPT notified the applicant that no determination had been made in his favour in respect of his complaints. This meant either that there had been no interception or that any interception which took place was lawful. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Applicable legislation 1.   Subject access requests under the Data Protection Act (“DPA”) 1998 21 .     Section 7(1) DPA grants individuals the right to request details of any information about them held by persons or organisations which record, store, or process personal data. 22 .     Under section 28 DPA, personal data is exempt from disclosure under section 7(1) if an exemption is required for the purpose of safeguarding national security. 2.     The Human Rights Act 1998 23 .     The HRA incorporates the Convention into United Kingdom law. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right, except where it is constrained to act in that way as a result of primary legislation which cannot be interpreted so as to be compatible with Convention rights. Under section   7(1), a person claiming that a public authority has acted unlawfully under section 6(1) may bring proceedings against it in the appropriate court or rely on the Convention right in any legal proceedings. 24 .     Under section 4(2), if a court is satisfied that a provision of primary legislation is incompatible with a Convention right, it may make a declaration of that incompatibility. “Court”, in section 4, is defined as meaning the Supreme Court; the Judicial Committee of the Privy Council; the Court Martial Appeal Court; in Scotland, the High Court of Justiciary (sitting otherwise than as a trial court) or the Court of Session; or in England and Wales or Northern Ireland, the High Court or the Court of Appeal. Section 4(6) clarifies that a declaration of incompatibility does not affect the validity, continuing operation or enforcement of the legislative provision in question and is not binding on the parties to the proceedings in which it is made. 3.     Interception warrants 25 .     Since 2 October 2000, the interception of communications has been regulated by the Regulation of Investigatory Powers Act 2000 (“RIPA”). The explanatory notes which accompany RIPA explain that the main purpose of RIPA is to ensure that investigatory powers are exercised in accordance with human rights. 26 .     Section 71 RIPA provides for the adoption of codes of practice by the Secretary of State in relation to the exercise and performance of his powers and duties under the Act. Draft codes of practice must be laid before Parliament and are public documents. They can only enter into force in accordance with an order of the Secretary of State. The Secretary of State can only make such an order if a draft of the order has been laid before Parliament and approved by a resolution of each House. 27 .     Under section 72(1) RIPA, a person exercising or performing any power or duty relating to interception of communications must have regard to the relevant provisions of a code of practice. The provisions of a code of practice may, in appropriate circumstances, be taken into account by courts and tribunals under section 72(4) RIPA. 28 .     The Interception of Communications Code of Practice (“the Code”) entered into force on 1 July 2002. It is now available on the Home Office website. a.     The issue of an interception warrant 29 .     Interception is permitted in several cases, exhaustively listed in section 1(5) RIPA. Section 1(5)(b), the relevant provision in the present case, provides that interception is lawful if authorised by an interception warrant. Any unlawful interception is a criminal offence under section 1(1). 30 .     Section 2(2) 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 telecommunication 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 or all of the contents of the communication available, while being transmitted, to a person other than the sender or intended recipient of the communication.” 31 .     Section 5(1) allows the Secretary of State to issue a warrant authorising the interception of the communications described in the warrant. Under section 5(2), no warrant for interception of internal communications (i.e. communications within the United Kingdom) shall be issued unless the Secretary of State believes: “(a) that the warrant is necessary on grounds falling within subsection (3); and (b) that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct. 32 .     Section 5(3) provides: “Subject to the following provisions of this section, a warrant is necessary on grounds falling within this subsection if it is 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 ...” 33 .     The term “national security” is not defined in RIPA. However, it has been clarified by the Interception of Communications Commissioner appointed under RIPA's predecessor (the Interception of Communications Act 1985) who, in his 1986 report, stated 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.” 34 .     Section 81(2)(b) RIPA defines “serious crime” as crime which satisfies one of the following criteria: “(a) that the offence or one of the offences that is or would be constituted by the conduct 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; (b) that the conduct 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.” 35 .     Section 81(5) provides: “For the purposes of this Act detecting crime shall be taken to include– (a) establishing by whom, for what purpose, by what means and generally in what circumstances any crime was committed; and (b) the apprehension of the person by whom any crime was committed; and any reference in this Act to preventing or detecting serious crime shall be construed accordingly ...” 36 .     Under section 5(4), the Secretary of State must, when assessing whether the requirements in section 5(2) are met, consider whether the information sought to be obtained under the warrant could reasonably be obtained by other means. 37 .     Section 5(5) provides that a warrant shall not be considered necessary for the purpose of safeguarding the economic well-being of the United Kingdom unless the information which it is thought necessary to obtain is information relating to the acts or intentions of persons outside the British Islands. 38 .     Section 7(2)(a) requires the Secretary of State personally to issue all warrants of the nature at issue in the present case, except in cases of urgency where he must nonetheless personally authorise the issuing of the warrant. Section 6(2) provides an exhaustive list of those who may apply for an interception warrant, including the heads of national intelligence bodies, heads of police forces and the Customs and Excise Commissioners. 39 .     Paragraphs 2.4 to 2.5 of the Code provide additional guidance on the application of the proportionality and necessity test in section 5(2): “2.4 Obtaining a warrant under the Act will only ensure that the interception authorised is a justifiable interference with an individual's rights under Article 8 of the European Convention of Human Rights (the right to privacy) if it is necessary and proportionate for the interception to take place. The Act recognises this by first requiring that the Secretary of State believes that the authorisation is necessary on one or more of the statutory grounds set out in section 5(3) of the Act. This requires him to believe that it is necessary to undertake the interception which is to be authorised for a particular purpose falling within the relevant statutory ground. 2.5 Then, if the interception is necessary, the Secretary of State must also believe that it is proportionate to what is sought to be achieved by carrying it out. This involves balancing the intrusiveness of the interference, against the need for it in operational terms. Interception of communications will not be proportionate if it is excessive in the circumstances of the case or if the information which is sought could reasonably be obtained by other means. Further, all interception should be carefully managed to meet the objective in question and must not be arbitrary or unfair.” b.     The contents of an application and an interception warrant 40 .     Section 8 sets out the requirements as to the contents of an interception warrant as regards the identification of the communications to be intercepted: “(1) An interception warrant must name or describe either– (a) one person as the interception subject; or (b) a single set of premises as the premises in relation to which the interception to which the warrant relates is to take place. (2) The provisions of an interception warrant describing communications the interception of which is authorised or required by the warrant must comprise one or more schedules setting out the addresses, numbers, apparatus or other factors, or combination of factors, that are to be used for identifying the communications that may be or are to be intercepted. (3) Any factor or combination of factors set out in accordance with subsection (2) must be one that identifies communications which are likely to be or to include– (a) communications from, or intended for, the person named or described in the warrant in accordance with subsection (1); or (b) communications originating on, or intended for transmission to, the premises so named or described.” 41 .     Paragraph 4.2 of the Code provides: “An application for a warrant is made to the Secretary of State. Interception warrants, when issued, are addressed to the person who submitted the application. This person may then serve a copy upon any person who may be able to provide assistance in giving effect to that warrant. 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 the 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 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.” c.     Safeguards 42 .     Section 15 RIPA is entitled “Restrictions on use of intercepted material etc.” and provides, insofar as relevant to internal communications, as follows: “(1) ... it shall be the duty of the Secretary of State to ensure, in relation to all interception warrants, that such arrangements are in force as he considers necessary for securing– (a) that the requirements of subsections (2) and (3) are satisfied in relation to the intercepted material and any related communications data; ... (2) The requirements of this subsection are satisfied in relation to the intercepted material and any related communications data if each of the following– (a) the number of persons to whom any of the material or data is disclosed or otherwise made available, (b) the extent to which any of the material or data is disclosed or otherwise made available, (c) the extent to which any of the material or data is copied, and (d) the number of copies that are made, is limited to the minimum that is necessary for the authorised purposes. (3) The requirements of this subsection are satisfied in relation to the intercepted material and any related communications data if each copy made of any of the material or data (if not destroyed earlier) is destroyed as soon as there are no longer any grounds for retaining it as necessary for any of the authorised purposes. (4) For the purposes of this section something is necessary for the authorised purposes if, and only if– (a) it continues to be, or is likely to become, necessary as mentioned in section 5(3); ... (5) The arrangements for the time being in force under this section for securing that the requirements of subsection (2) are satisfied in relation to the intercepted material or any related communications data must include such arrangements as the Secretary of State considers necessary for securing that every copy of the material or data that is made is stored, for so long as it is retained, in a secure manner ...” 43.     Section 16 sets out extra safeguards which apply in the case of interception of external communications only. 44 .     Section 19 imposes a broad duty on all those involved in interception under RIPA to keep secret, among other matters, “everything in the intercepted material” (section 19(3)(e)). Under section 19(4), disclosure of such material is a criminal offence punishable by up to five years' imprisonment. 45 .     Paragraph 6.1 of the Code requires all material intercepted under the authority of a section 8(l) warrant to be handled in accordance with safeguards put in place by the Secretary of State under section 15 of the Act. Details of the safeguards are made available to the Commissioner (see paragraph 57 below) and any breach of the safeguards must be reported to him. 46 .     Paragraphs 6.4 to 6.8 of the Code provide further details of the relevant safeguards: “ Dissemination of intercepted material 6.4 The number of persons to whom any of the material is disclosed, and the extent of disclosure, must be limited to the minimum that is necessary for the authorised purposes set out in section 15(4) of the Act. This obligation applies equally to disclosure to additional persons within an agency, and to disclosure outside the agency. It is enforced by prohibiting disclosure to persons who do not hold the required security clearance, and also by the need-to-know principle: intercepted material must not be disclosed to any person unless that person's duties, which must relate to one of the authorised purposes, are such that he needs to know about the material to carry out those duties. In the same way only so much of the material may be disclosed as the recipient needs; for example if a summary of the material will suffice, no more than that should be disclosed. 6.5 The obligations apply not just to the original interceptor, but also to anyone to whom the material is subsequently disclosed. In some cases this will be achieved by requiring the latter to obtain the originator's permission before disclosing the material further. In others, explicit safeguards are applied to secondary recipients. Copying 6.6 Intercepted material may only be copied to the extent necessary for the authorised purposes set out in section 15(4) of the Act. Copies include not only direct copies of the whole of the material, but also extracts and summaries which identify themselves as the product of an interception, and any record referring to an interception which is a record of the identities of the persons to or by whom the intercepted material was sent. The restrictions are implemented by requiring special treatment of such copies, extracts and summaries that are made by recording their making, distribution and destruction. Storage 6.7 Intercepted material, and all copies, extracts and summaries of it, must be handled and stored securely, so as to minimise the risk of loss or theft. It must be held so as to be inaccessible to persons without the required level of security clearance. This requirement to store intercept product securely applies to all those who are responsible for the handling of this material, including communications service providers ... Destruction 6.8 Intercepted material, and all copies, extracts and summaries which can be identified as the product of an interception, must be securely destroyed as soon as it is no longer needed for any of the authorised purposes. If such material is retained, it should be reviewed at appropriate intervals to confirm that the justification for its retention is still valid under section 15(3) of the Act.” 47 .     Specific guidance is given as to the vetting of those involved in intercept activities in paragraph 6.9 of the Code: “6.9 Each intercepting agency maintains a distribution list of persons who may have access to intercepted material or need to see any reporting in relation to it. All such persons must be appropriately vetted. Any person no longer needing access to perform his duties should be removed from any such list. Where it is necessary for an officer of one agency to disclose material to another, it is the former's responsibility to ensure that the recipient has the necessary clearance.” 48 .     The Government's policy on security vetting was announced to Parliament by the Prime Minister on 15 December 1994. In his statement, the Prime Minister explained the procedure for security vetting and the kinds of activities which would lead to the exclusion of an individual from participation in work vital to the interests of the State. 49 .     The Security Service Act 1989 and the Intelligence Services Act 1994 impose further obligations on the heads of the security and intelligence services to ensure the security of information in their possession. d.     Duration of an interception warrant 50 .     Section 9(1)(a) provides that an interception warrant for internal communications ceases to have effect at the end of the “relevant period” The “relevant period” is defined in section 9(6) as: “(a) in relation to an unrenewed warrant issued in a case [issued] under the hand of a senior official, ... the period ending with the fifth working day following the day of the warrant's issue; (b) in relation to a renewed warrant the latest renewal of which was by an instrument endorsed under the hand of the Secretary of State with a statement that the renewal is believed to be necessary on grounds falling within section 5(3)(a) [national security] or (c) [economic well-being], ... the period of six months beginning with the day of the warrant's renewal; and (c) in all other cases, ... the period of three months beginning with the day of the warrant's issue or, in the case of a warrant that has been renewed, of its latest renewal.” 51 .     Section 9(1)(b) provides that an interception warrant may be renewed by the Secretary of State at any time before its expiry where he believes that the warrant continues to be necessary on grounds falling within section 5(3). 52 .     The Secretary of State is required under Section 9(3) to cancel an interception warrant if he is satisfied that the warrant is no longer necessary on grounds falling within section 5(3). 53 .     Section 10(2) imposes an obligation on the Secretary of State to delete any factor set out in a schedule to an interception warrant which he considers is no longer relevant for identifying communications which, in the case of that warrant, are likely to be or to include communications from, or intended for, the interception subject. 54 .     Paragraph 4.13 of the Code provides: “The Secretary of State may renew a warrant at any point before its expiry date. Applications for renewals must be made to the Secretary of State and should contain an update of the matters outlined in paragraph 4.2 above. In particular, the applicant should give an assessment of the value of interception to the operation to date and explain why he considers that interception continues to be necessary for one or more of the purposes in section 5(3).” 55 .     Paragraph 4.16 of the Code provides: “The Secretary of State is under a duty to cancel an interception warrant if, at any time before its expiry date, he is satisfied that the warrant is no longer necessary on grounds falling within section 5(3) of the Act. Intercepting agencies will therefore need to keep their warrants under continuous review. In practice, cancellation instruments will be signed by a senior official on his behalf.” e.     Duty to keep records 56 .   Paragraph 4.18 of the Code imposes record-keeping obligations on intercepting agencies and provides: “The oversight regime allows the Interception of Communications Commissioner to inspect the warrant application upon which the Secretary of State based his decision, and the applicant may be required to justify the content. Each intercepting agency should keep the following to be made available for scrutiny by the Commissioner as he may require:           all applications made for warrants complying with section 8(l) and applications made for the renewal of such warrants;           all warrants, and renewals and copies of schedule modifications (if any);           where any application is refused, the grounds for refusal as given by the Secretary of State;           the dates on which interception is started and stopped.” 4.     The Commissioner a.     Appointment and functions 57 .     Section 57 RIPA provides that the Prime Minister shall appoint an Interception of Communications Commissioner (“the Commissioner”). He must be a person who holds or has held high judicial office. The Commissioner is appointed for a three-year, renewable term. To date, there have been two Commissioners appointed under RIPA. Both are former judges of the Court of Appeal. 58 .     The Commissioner's functions include to keep under review the exercise and performance by the Secretary of State of powers and duties in relation to interception conferred or imposed on him by RIPA; the exercise and performance of powers and duties in relation to interception by the persons on whom such powers or duties are conferred or imposed; and the adequacy of the arrangements by virtue of which the duty which is imposed on the Secretary of State by section 15 (safeguards – see paragraph 42 above) is sought to be discharged. 59 .     Section 58 RIPA places a duty on those involved in the authorisation or execution of interception warrants to disclose to the Commissioner all documents and information which he requires in order to carry out his functions. As noted above (see paragraph 56), the Code requires intercepting agencies to keep accurate and comprehensive records for this purpose. 60.     In his 2005-2006 report, the Commissioner described his inspections as follows: “12. In accordance with [my] duties I have continued my practice of making twice yearly visits to ... the intercepting agencies and the departments of the Secretaries of State/Ministers which issue the warrants. Prior to each visit, I obtain a complete list of warrants issued or renewed or cancelled since my previous visit. I then select, largely at random, a sample of warrants for inspection. In the course of my visit I satisfy myself that those warrants fully meet the requirements of RIPA, that proper procedures have been followed and that the relevant safeguards and Codes of Practice have been followed. During each visit I review each of the files and the supporting documents and, when necessary, discuss the cases with the officers concerned. I can view the product of interception. It is of first importance to ensure that the facts justified the use of interception in each case and that those concerned with interception fully understand the safeguards and the Codes of Practice. 13. I continue to be impressed by the quality, dedication and enthusiasm of the personnel carrying out this work on behalf of the Government and the people of the United Kingdom. They have a detailed understanding of the legislation and are always anxious to ensure that they comply both with the legislation and the appropriate safeguards ...” 61 .     The Commissioner is required to report to the Prime Minister if he finds that there has been a violation of the provisions of RIPA or if he considers that the safeguards under section 15 have proved inadequate (sections 58(2) and (3) RIPA). The Commissioner must also make an annual report to the Prime Minister regarding the exercise of his functions (section 58(4)). Under section 58(6), the Prime Minister must lay the annual report of the Commissioner before Parliament. Finally, the Commissioner is required to assist the IPT with any request for information or advice it may make (section 57(3) and paragraph 78 below)). b.     Relevant extracts of reports 62 .     In his 2000 report, the Commissioner noted, as regards the discharge of their duties by the Secretaries of State: “12. ... I have been impressed with the care that they take with their warrantry work, which is very time consuming, to ensure that warrants are issued only in appropriate cases and, in particular, in ensuring that the conduct authorised is proportionate to what is sought to be achieved by the intercepts.” 63 .     At paragraph 15, on the question of safeguards, he said: “... my advice and approval were sought and given in respect of the safeguard documents either before or shortly after 2 October 2000. The Home Secretary also sought my advice in relation to them and they were approved by him ...” 64 .     As to the need for secret surveillance powers, the Commissioner commented: “45. The interception of communications is, as my predecessors have expressed in their Report, an invaluable weapon for the purpose set out in section 5(3) of RIPA and, in particular, in the battle against serious crime ...” 65 .     In his report for 2001, the Commissioner noted: “10. Many members of the public are suspicious about the interception of communications, and s