purpose of obtaining information or of taking possession of any
document or other property.”
Mr. de la Mare seeks to get round the problem that this exemption would only
apply to “stored communication” by postulating that there could be two
directions, or a two-stage direction, by the Secretary of State, for the
communications to be first stored and then intercepted. But this would plainly
be an impermissible evasion of the criminal offence. In any event it is agreed
that s.94 has not been used for such purpose.
56
The Claimant in a written Note delivered after the hearing, which extended
more widely than had been permitted by the Tribunal when we agreed that
there could be a response to the Respondents' speaking note in relation to
Issues 2 and 3, referred to other statutes which on their face give the Secretary
of State a power to issue broadly worded directions in the interests of national
security. We do not consider that any of them assist us in relation to the
construction of the context and history of s.94, with which we have already
dealt, and which was the subject of careful argument by both parties. The
Note also referred to a Zimbabwean case, which appears to address the alleged
untrammelled discretion of the President of Zimbabwe; if relevant at all it
would, in our judgment, be only material in the context of what we in any
event have to consider, namely the applicability of the ECHR, which is the
bulwark which the UK Courts adopt to restrain arbitrary conduct by the
executive, and which will be the subject of our consideration in Issues 2 and 3.
57
For the reasons given, we are satisfied that the relevant Secretary of State
pursuant to s.94 was and is entitled to issue directions to telecommunications
and internet service providers to supply communications data to MI5 and
GCHQ. It is clear, notwithstanding Mr. de la Mare’s reference to passages in
the 1999 White Paper, or in Hansard, that neither RIPA nor DRIPA
constituted a ‘comprehensive code’, as he submits, such as to exclude,
override or repeal the operation of s.94, which was preserved by s.80 of
RIPA. In any event, subject to Issues 2 and 3 below:(i) The law is clear, and the directions may be given if necessary and
proportionate, so as to facilitate access by the SIAs to communications
data supplied by the PECNs.
(ii) As in Snelling, there are two lawful routes for the SIAs to obtain
communications data in the interests of protecting national security.
The continued existence of the directions under s.94, and the Respondents’
contentions by reference to s.45 of the 1984 Act, to s.80 of RIPA, to the
Communications Act 2003 and to s.1 of DRIPA, do not constitute a series of
“trapdoors”, such as Mr. de la Mare submitted. Rather, as we have found,
they constitute the correct legal analysis.
58
Consequently we resolve Issue 1 in favour of the Respondents: it is lawful
at domestic law to use s 94 to obtain BCD.
ISSUES 2 and 3
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