54
There was a further contention by the Respondents that is not necessary for
our conclusion, namely that in any event ss.21 and 22 of RIPA, the sections
said to constitute a ‘comprehensive code’ for the acquisition or obtaining of
communications data, and which apply where (s.22) a designated person
believes it is necessary to obtain communications data, do not apply at all
where the communications data have already been obtained by virtue of a s.94
direction, and the Secretary of State has (after the necessary consultation)
considered it necessary (and proportionate) to obtain the data. It is certainly
right that when the use of s.94 was discussed in 2004 with the then I C C, Sir
Swinton Thomas, as disclosed in documents in these proceedings by the
Respondents, access to the communications data, already acquired by virtue of
the s.94 direction, was discussed in the context of ‘obtaining’ the information.
It is also the case that the procedures for access operated by MI5 (but not by
GCHQ) for accessing the communications data obtained under s.94 are
analogous to those adopted for accessing data obtained by intercept, (although
the terms of the Acquisition and Disclosure of Communications Data Code of
Practice of March 2015 in s.1 appear clearly to contrast acquisition of
communications data under RIPA with data obtained under other powers).
However, given our conclusion that Part I, Chapter II of RIPA is not a
comprehensive code excluding the operation of s.94, there is no need to
resolve this issue. The result is as discussed by Patten LJ in Snelling v
Burstow Parish Council [2014] 1 WLR 2388, and as Aikens LJ in RK
(Nepal) v SSHD [2009] EWCA Civ 359 postulated, namely that the two
routes are parallel and alternative.
55
Mr. de la Mare submitted that Mr. Eadie’s construction of s.94 was impossible
or implausible, because it depended upon his limiting s.94 to giving directions
for delivery of communications data, whereas the section could be construed
as permitting the use of s.94 to obtain interception of the contents of
communications, which Mr Eadie was abjuring. We have already explained
why, upon construction of the context of s.94, taken together with s.45, its
purpose was to enable the obtaining of billing information, or what is now
called communications data. In addition, it is plain that, as set out in paragraph
198 of the Respondents’ Amended Open Response of 19 February 2016,
“directions under s.94 can lawfully be made to require [PECNs] to facilitate
conduct that has already been made lawful by authorisations under [other
statutory] provisions”. However we are satisfied that a direction under s.94
could not be used, and in any event was not intended, for the purpose of itself
authorising or directing interception of contents. At the time of the passage of
the 1984 Act the prerogative was used for such interception, and that was then
replaced by the provisions of s.2 of the 1985 Act (see paragraph 35 above). S.
1 of RIPA made interception of content an offence, save insofar as otherwise
pursuant to lawful authority, and the exemption was provided by s.1(5) of
RIPA, which read as follows:“(5) Conduct has lawful authority for the purposes of this section if
and only if [apart from the provisions of RIPA] …;
(c) it is in exercise, in relation to any stored communication, of any
statutory power that is exercised (apart from this section) for the
22