Intercepting Communications ‘In Accordance with the Law’
| Date | 01 April 2012 |
| Published date | 01 April 2012 |
| DOI | 10.1350/jcla.2012.76.2.762 |
| Author | Rita Esen |
| Subject Matter | Article |
Intercepting Communications ‘In
Accordance with the Law’
Rita Esen*
Abstract The interception of communications affects individuals’ privacy
rights and is covered by the notions ‘private life’ and ‘correspondence’
within the meaning of Article 8 of the Human Rights Act 1998. There are
certain circumstances when it may be necessary to interfere with these
rights but such interference must be in accordance with the law and for
clearly defined purposes. Where communications are to be intercepted,
the law has to make available a means of redress to affected individuals.
Keywords Telephone tapping; Interference; Human rights
The interception of communications and the use of data obtained from
it interferes with individuals’ rights protected by Article 8 of the Human
Rights Act 19981as such communications are covered by the notions of
‘private life’ and ‘correspondence’ within the meaning of Article 8. Once
the Human Rights Act came into force, the courts were empowered to
declare any legislation incompatible with the European Convention on
Human Rights.2Article 8 of the Human Rights Act provides:
1. Everyone has the right to respect for his private and family life, his home
and his correspondence.
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.
As interception of communications affects the privacy rights of indi-
viduals, the challenge is how to balance this right with the need to
intercept communications for the prevention and investigation of
crimes. The European Convention on Human Rights stipulates the
minimum requirement that party states have to fulfil in order to protect
individuals’ rights. It provides a mechanism for the enforcement of such
rights by individuals where they have been infringed and there is no
remedy under domestic law to address such infringement. Although the
legal right to respect for private and family life is established in Article 8,
there are certain circumstances in a democratic society when it may be
necessary for the state to interfere with this right. However, such inter-
ference has to be in accordance with the law and for certain clearly
* Visiting Reader, University of Northumbria.
1 This incorporates Article 8 of the European Convention on Human Rights into UK
law.
2 The White Paper which preceded the Human Rights Act stated: ‘the essential
feature of the Human Rights Bill is that the UK will not be bound to give effect to
the Convention rights merely as a matter of international law but will also give
them further effect directly in our domestic law’ (Rights Brought Home: The Human
Rights Bill, Cm 3782 (October 1997)).
164 The Journal of Criminal Law (2012) 76 JCL 164–178
doi:10.1350/jcla.2012.76.2.762
To continue reading
Request your trial