the bill which they accompanied, but it is equally accepted that those
documents cannot provide any aid to construction of the original 1990 CMA.
17.
Mr Jaffey submits that:
i)
The CMA is the ‘lex specialis’ relating to computer misuse. It governs
the position, and there is specific reference in the unamended s.10 to
the law enforcement powers which are exempted from the ambit of s.1,
and s.3 is left entirely unaffected. When the ISA was enacted in 1994,
it could not affect the position, namely that it is only s.1 of the CMA
which has effect “without prejudice to the operation in England and
Wales of any enactment relating to powers of inspection, search or
seizure”, and not s.3
ii)
There may be good reason for Parliament having so differentiated
because:
iii)
18.
(a)
Parliament is to be taken to have decided that less intrusive
operations would be exempted from the ambit of the Act and
not the more excessive activity covered by s.3.
(b)
It may be that there were concerns that an act which would
contravene s.3 might impact upon the reliability of evidence
contained in a computer, in the context of its being admitted
into evidence in subsequent criminal proceedings (there being
no bar on the admission of such evidence, as there is and was
in relation to intercept evidence). There is some discussion in
Hansard at the time of passage of the bill as to concerns about
the position of such evidence.
The 1990 CMA, and its express savings, cannot be impliedly overruled
by the subsequent 1994 ISA (see Lord Hope in H v Lord Advocate
[2013] 1 AC 413 at 436, paragraph 30 as to implied subsequent repeal).
Mr Eadie submits that:
i)
The language of ss.5 and 7 of the ISA, set out in paragraph 4 above is
in each case clear. No act done pursuant to those sections can be
unlawful either civilly or criminally. That plainly includes an act
which would otherwise be an offence under s.3 of the CMA.
ii)
The 1994 ISA was the ‘lex specialis’ relating to the Intelligence
Agencies. Earlier savings provisions cannot limit the powers given
under s.5 and s.7 of ISA. S.10 of CMA (as un-amended) did not
purport to be exhaustive: the heading, which is admissible for
interpretation, refers to “saving for certain law enforcement powers”,
and even the words “any enactment relating to powers of inspection,
search or seizure” would only appear to be relevant in relation to s.1 of
CMA and not necessarily to s.3. In any event s.5 and s.7 post-date the
CMA, and expressly authorise and exempt from sanction the relevant
conduct, and it would be unthinkable that acts under it, in accordance