with GCHQ’s express powers under s.3(1)(a), would be unlawful. Ss.5
and 7 are not, and are not relied upon as, an implied repeal of what was
only a savings clause in the 1990 Act.
iii)
19.
With regard to the 1990 discussion in Hansard, there is no sign that
concerns about the admissibility of evidence were discussed in the
specific context either of s.3 or of (what became) s.10. In any event it
is plain from Hansard that there was an amendment put forward,
which would have placed what was called a temporary stop (pending
further debate) preventing the Security Service from misusing
computers (this would have been pursuant to s.3 of the 1989 Act
referred to in paragraph 6(i) above). This amendment (“to prevent
hacking or similar activities by the Security Service”) was not pressed.
It would seem therefore that it was accepted that the 1989 Act, already
on the statute book, was not affected by the CMA. A fortiori the
subsequent 1994 Act is not either.
We would add that if reference is made to the definition section in s.17 of the
CMA there is not in fact a dramatic difference between securing access under
s1 and acts covered by s.3 in any event. S.17(2) reads as follows:
“(2)
A person secures access [our underlining] to
any program or data held in a computer if by
causing a computer to perform any function he
–
(a)
Alters or erases the program or data;
(b)
Copies or moves it to any storage
medium other than that in which it is held
or to a different location in the storage
medium in which it is held;
(c)
Uses it; or
(d)
Has it output from the computer in which
it is held (whether by having it displayed
or in any other manner).
And references to access to a program or data
(and to an intent to secure such access . . .)
shall be read accordingly.”
Any concern about potential impact on computers for subsequent admissibility
purposes would be as live in respect of such a wide definition of s.1 as it
would be in respect of s.3.
20.
Whatever was the purpose lying behind the precise wording of s.10 in its unamended form, it seems to us clear that it had no effect upon and/or was
expressly overtaken by the clear words of ss.5 and 7 of the ISA. It would
indeed be extraordinary that proportionate and necessary steps taken for the