Earlier articles in Lobster (issues 39, 41, 43, 45, 49) 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 (IPT), 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. It was claimed that the right guaranteed by Article 8(1) of the European Convention on Human Rights, the right to respect for private and family life, home and correspondence, has been, and continues to be, violated. The agencies alleged to be involved were MI5, GCHQ and the Metropolitan Police.
In January 2005 the Tribunal issued its final decision: it did not uphold Kennedy’s complaint or HRA claim, and under s67(8) of RIPA there is no right of appeal from decisions of the Tribunal.
Kennedy’s case, which challenges the surveillance provisions of RIPA, is now being taken to the European Court of Human Rights in Strasbourg. Kennedy’s application was lodged with the Court in November 2005, but proceedings are slow, and it is likely to be some time before it is known whether it has been declared admissible, and can then proceed toward judgment.
Kennedy is claiming that the Regulation of Investigatory Powers Act and the Investigatory Powers Tribunal Rules,([1]) made under s69 RIPA, breach the European Convention on Human Rights Article 8 (the right to privacy) and Article 6 (the right to a fair trial), and Kennedy also claims that he has no effective remedy for the violations of Articles 6 and 8 and therefore the Government is in breach of Article 13.([2])
Kennedy submits that the RIPA provisions regulating interception of communication and the continuing interference with his communications, mainly the interception of incoming business calls, since 1999, violate his right under Article 8(1) for ‘respect for private and family life, his home and his correspondence’ and that the interception is not justified under Article 8(2), which says that for interference not to infringe Article 8, it must have been conducted ‘in accordance with the law’, and cites exceptions including the interests of national security, the prevention of disorder or crime and the economic well-being of the country. ([3])
Kennedy also complains that RIPA fails to provide adequate safeguards against abuse by the authorities when engaged in interception of communication. Kennedy also submits that the rules of the Investigatory Powers Tribunal restrict his rights under Article 6(1) to such an extent that his right to a ‘fair and public hearing’ is impaired. ([4])
In quite separate proceedings, Kennedy’s original case has been referred to the Criminal Cases Review Commission, the body set up to review suspected miscarriages of justice, after new evidence was uncovered that throws fresh light on the case.
Framed by the police
Kennedy was convicted of manslaughter in 1994, after three trials and an appeal. The victim, Patrick Quinn, was found dead in the same cell as Kennedy at Hammersmith police station in December 1990, after both men had been separately arrested for drunkenness. Kennedy says that he was framed by the police, and concerns about the safety of his conviction were expressed by many from the outset. However, Kennedy served four and a half years and was released from prison in 1996.
The CCRC is able to examine new arguments or evidence, and if they consider there is a ‘real possibility’ that a conviction would not be upheld it will refer the case to the Court of Appeal. However, it is likely to be some time before the outcome of the CCRC’s review is known.
In the meantime, Kennedy says he is still having serious problems with interference with his phones and Websites advertising his business and as a result is getting very little work, despite increasing the amount of advertising for his transport business, which carries out small moves in London. He says that he has complained to the Metropolitan Police about interference with the phone line of a new and separate company that was set up in 2004 and which suffered interference right from the start, despite there being no apparent connection with Kennedy or his small moves company. Kennedy says that he has appealed a second time to the Independent Police Complaints Commission, who have ordered the Metropolitan Police (Professional Standards) to investigate his complaint.
He believes that the interference is intended to keep him impoverished and discourage him from pursuing his former criminal case. As a result of these problems, which have con-tinued to a greater or lesser extent since 1999, Kennedy says that he faces financial ruin.
Notes
[1] www.hmso.gov.uk/si/si2000/20002665.htm
[2] Article 13 states: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’
[3] Article 8(1) says: ‘Everyone has the right to respect for his private and family life, his home and his correspondence.’Article 8(2): ‘There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’
[4] Article 6(1) says that ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by lawΒ ..’