Previous articles in Lobster (issues 39, 41, 43, 45) have followed Malcolm Kennedy’s case. The human rights organisation Liberty took his complaint about interference with his communications and other forms of surveillance and harassment, to the Investigatory Powers Tribunal. The IPT is the body set up under the Regulation of Investigatory Powers Act 2000 (RIPA) to hear complaints relating to conduct by the Security and Intelligence agencies, and complaints about phone-tapping. It also deals with claims under the Human Rights Act 1998, s7(1)(a) that a public authority has acted in a manner incompatible with a Convention right. In this case it was claimed that the Convention right guaranteed by Article 8(1), the right to respect for private and family life, home and correspondence, has been, and continues to be, violated. In January 2005 the Tribunal issued it’s final decision: it did not uphold Kennedy’s complaint or HRA claim. This decision was hardly surprising: neither this Tribunal nor it’s predecessor, the Interception of Communications Tribunal, have ever upheld a complaint.([1])
In the letter issuing their decision, dated January 17 2005, the Tribunal say they have now investigated Kennedy’s complaint and Human Rights Act claim, and that no determination has been made in Kennedy’s favour on either. The letter goes on to say that:
‘such a worded determination is given in cases where either no contravention of the legislation has occurred, i.e. where the Tribunal is satisfied that any activity that has taken place has been properly authorised and carried out in accordance with RIPA, or in respect of those cases where no activity has taken place at all. The provisions of RIPA do not allow the Tribunal to disclose whether or not your client is, or has been, of interest to the security, intelligence or law enforcement agencies.’ ([2])
Alex Gask, a solicitor at Liberty who has been involved with Kennedy’s case, explains that this could mean:
(1) that the Tribunal has found there has been surveillance of Kennedy, and interference with his communications, but that this has all been properly authorised and carried out in accordance with the provisions of RIPA;
(2) that there has been no surveillance of Kennedy or interference with any of his communications.
There is a third possibility, Gask says: that the Tribunal’s investigations have failed to reveal any unlawful interference with Kennedy’s communications because those conducting the interference have deliberately shielded it from the investigation. However, Gask believes this is unlikely, as it would be hard for any systematic interference with Kennedy’s telephones and internet connection to have taken place without any of the avenues of enquiry producing some firm evidence of that interference. Gask says that Liberty have taken Kennedy’s case as far as they can. There is no right of appeal from a decision of the Investigatory Powers Tribunal. ([3])
A police operation?
Kennedy believes that there must be an interception warrant on him, which is continually being renewed, and that this allows the interference to continue, carried out, he believes, by one of the respondent organisations (these were the Security Service, GCHQ, and the Metropolitan Police). ([4]) He believes it is most probably elements within the police who are behind the continued and systematic interference with his telephones, e-mails and other aspects of his private life, which, he says, has continued for many years, starting soon after he set up his ‘Small Moves’ business in Hackney, London, in 1997. ([5])
As a result, Kennedy is in financial difficulties: despite increased advertising, genuine customers have not been able to contact him, and are still not able to. The situation has worsened recently, his business has been running at a loss and he has run up serious debts. Other people involved with miscarriage of justice cases have reported similar experiences to Kennedy’s, particularly interference with their communications, but rarely in such a systematic and protracted manner. Kennedy, who since January has been convalescing from a major operation (a colleague ran the business while he was away), expresses anger that it is possible for an individual to be driven to bankruptcy and, possibly, homelessness in this way. He says the Tribunal does not investigate complaints properly and that it is ‘a deception perpetrated against the public’. It provides somewhere for people to complain to, but never upholds a complaint. He is determined to pursue his case further, to the European Court of Human Rights.
Further information about miscarriages of justice is available from:
1. <www.phone-interception-harassment.co.uk>
Malcom Kennedy’s website with information on phone and mail interception and harassment, particularly in relation to miscarriage of justice campaigns with links to relevant web-sites. The website provides information and details of how to order a DVD of a House of Commons meeting in September 2003 at which speakers discussed their experiences of harassment and intimidation while pursuing miscarriage of justice cases. Speakers included Don Hale, the journalist who campaigned to clear the name of Stephen Downing, who served 27 years for the 1973 murder of Wendy Sewell in Bakewell; Kevin McMahon of Merseyside Against Injustice, who previously worked for Merseyside Police and later became a detective and Special Branch Officer; and Barbara Stone of Kent Against Injustice, sister of Michael Stone, who is serving life sentences for the murder of Lin and Megan Russell, the main evidence against him being the cell confession of a fellow prisoner. Stone lost his second appeal in January 2005.
The DVD is 1 hour long and is £12 (individuals).
2. Socially Important Films <www.si-films.co.uk>
From this website you can order a DVD of the United Against Injustice Annual (UAI) Meeting held at Conway Hall, London, on the 9 October 2004, the theme of which was challenging wrongful convictions. It also includes a DVD of the ‘case investigation workshop’ (1.5 hours) where the first speaker, Andrew Green, of Innocent (<www.innocent.org.uk>) gives a detailed guide for beginners on how to investigate a suspected miscarriage of justice case (this part is mainly audio only); and Steven Cooper of Legal Appeal also talks about investigating a case.
The afternoon UAI meeting, chaired by Bruce Kent, includes speeches from Kevin McMahon; John Wagstaff, principle legal advisor to the Criminal Cases Review Commission, an independent body for investigating miscarriages of justice, who discusses the work of the CCRC; Dr Bill Thompson on how people are ‘fitted-up’; Susan Kelly, whose brother Graham Huckerby was wrongfully convicted of involvement in a £6.5 million robbery, talks about starting a campaign and obtaining publicity; Carol McCartney of Leeds University and Dr Michael Naughton of Bristol University highlight the lack of research into miscarriages of justice in the UK and talk about the UK Innocence Project (<www.innocencenetwork.org.uk>) which aims to raise awareness of wrongful convictions and facilitate research that identifies the causes of them, with the aim of effecting legal reform to reduce their occurrence.
The DVD is £14.95 (individuals; 25% goes to UAI) and it is 2.5 hours long.
Notes
[1] ‘On no occasion has the Tribunal concluded that there has been a contravention of RIPA or the Human Rights Act 1998’ Report of the Interception of Communications Commissioner for 2003, para 30.
[2] The Tribunal’s policy of ‘neither confirm nor deny’ (NCND policy) is intended to safeguard national security, the functioning of the intelligence services and the identity of informants. It is invoked when questions are raised about interception and surveillance on the grounds that, without such a policy, complainants might infer whether, for example, such surveillance was taking place.
[3] RIPA s67(8)
[4] Warranted interception is covered by RIPA sections 6-11. An interception warrant must be authorised by the Secretary of State.
[5] Kennedy and other campaigners believe that he was framed by the police for the killing of Patrick Quinn in December 1990; see previous Lobsters.