to operate (in particular at paragraph 1.9 “Equipment Interference is
conducted in accordance with the statutory functions of each
Intelligence Service”). That was the same date as the service of the
Respondents’ Open Response in these proceedings, setting out their
case as to CNE. The Claimants have pointed to the fact that within a
month after the initiation in May 2014 of these proceedings by Privacy
International, by which the Claimants raised the issue as to the import
of s.10 of the Computer Misuse Act 1990 (“CMA”), proposed
amendments to s.10 were laid before Parliament on 5 June 2014 (as
part of the Serious Crime Bill), which have now been enacted. These
amendments are said by the Respondents to clarify, but asserted by the
Claimants to change, the nature of the un-amended s.10, which forms
the basis of the discussion in Issue 1 below, and plainly were also a
consequence of these proceedings.
ii)
There are now in the public domain what were previously “below the
waterline” arrangements (see paragraph 7 in the Liberty/Privacy No.1
judgment) underlying both the Property Code and the E I Code, either
redacted or gisted. Whether or not in the event they are determinative
in relation to the issues canvassed before us in relation to the question
of accessibility or foreseeability under Articles 8 and 10 of the ECHR,
it is valuable that they have been produced by the Respondents in these
proceedings. This arose as a result of the disclosure sought by the
Claimants, and by Counsel to the Tribunal, and requested by the
Tribunal.
iii)
Simultaneously with the preparation and eventual presentation of this
case, there has been the consideration by David Anderson QC, the
Independent Reviewer of terrorism legislation, in his Report dated June
2015, and subsequently the draft Investigatory Powers Bill (“the IP
Bill”) laid before Parliament in November 2015, which in its present
form has been before us, both of which plainly drew upon the ideas and
submissions which have now been openly canvassed before us.
Issue 1: s.10 CMA
12.
The first Issue is: Was an act which would be an offence under s.3 of the
CMA made lawful by a s.5 warrant or s.7 authorisation, prior to the
amendment of s.10 CMA as of May 2015?
13.
The following is common ground:
i)
S.1 of CMA reads in material part as follows:
“1. Unauthorised access to computer material.
(1) A person is guilty of an offence if—
(a)
he causes a computer to perform any
function with intent to secure access to
any program or data held in any