(14) In subsection (13) ‘the relevant time’ means,
as the case may be –
5.
6.
(a)
the time of the mistaken belief mentioned
in subsection (12)(a); or
(b)
the time at which the property was, or
was most recently, brought within the
British Islands.”
The ‘assumed facts’ procedure has been impacted to an extent on this occasion
by virtue of the fact that there has been a considerable degree of acceptance by
the Respondents, or ‘avowal’ as it has been called, of the existence and use of
CNE by GCHQ, and certainly so since the publication on 6 February 2015,
during the course of, and seemingly as a direct result of, the existence of these
proceedings, of the draft Equipment Interference Code of Practice pursuant to
s.71 of the Regulation of Investigatory Powers Act 2000 (“RIPA”) (“the E I
Code”), which has now, after a period of consultation, been laid before
Parliament in November 2015. [Since the hearing, it has been brought into
force by S.I.2016 no.38 dated 14 January 2016]. As a result of a Schedule of
Avowals, helpfully prepared by Mr Jaffey of counsel on behalf of the
Claimants, and responded to by the Respondents, the following matters are
admitted:
i)
GCHQ carries out CNE within and outside the UK.
ii)
In 2013 about 20% of GCHQ’s intelligence reports contained
information derived from CNE.
iii)
GCHQ undertakes both “persistent” and “non-persistent” CNE
operations, namely both where an ‘implant’ expires at the end of a
user’s internet session and where it “resides” on a computer for an
extended period.
iv)
CNE operations undertaken by GCHQ can be against a specific device
or a computer network.
v)
GCHQ has obtained warrants under s.5 and authorisations under s.7,
and in relation to the latter had five s.7 class based authorisations in
2014.
Apart from the provisions of the ISA, the other most material statutory
provisions are as follows:
i)
The 1989 Act (referred to above) by s.3 gave the power to the Security
Service (“MI5”) to apply for a warrant, which it is common ground
could have authorised conduct by GCHQ (whose existence was not at
that stage publicly admitted) on its behalf, whereby the Secretary of
State could, on an application made by MI5 issue a warrant
“authorising the taking of such action as is specified in the warrant in