(permitted) purpose of protecting national security, taken under an express
power under ss.5 or 7 of the ISA, and covered by an express removal of civil
or criminal liability, could be rendered unlawful by reference to a saving under
an earlier statute. The inability lawfully to take such steps under ss.5 and 7
would render the very function of GCHQ in relation to computers provided for
in s.3 of ISA (set out in paragraph 4 above), including powers to “monitor or
interfere with electro magnetic, acoustic and other emissions . . . in the
interests of national security”, entirely nugatory. Any argument in support of
such an extraordinary outcome has been removed by the amendment, which is,
we are satisfied, simply clarificatory, and we accept Mr Eadie’s submissions.
Issue 2: Territorial jurisdiction in respect of ss.5/7
21.
The Issue was: If an act by the Respondents constituting CNE was unlawful
prior to May 2015, would any such act abroad have been unlawful?
22.
S.4 of the CMA provides that it is immaterial whether any act occurred in the
UK or whether the accused was in the UK at the time of any such act,
provided that there was “at least one significant link with domestic
jurisdiction” at the relevant time. By s.5, where the accused was in a country
outside the UK at the time of the act constituting the offence, there would be
such a significant link with domestic jurisdiction if the accused was a UK
national at the time, and the act in question constituted an offence under the
law of the country in which it occurred.
23.
As we have decided Issue 1 in favour of the Respondents, this issue 2 does not
arise. Suffice it however to say that the jurisdictional provisions of ss.4 and 5
of the CMA are very broad, and s.4 (2) provides that: “at least one significant
link with domestic jurisdiction must exist in the circumstances of the case for
the offence to be committed”. The question could therefore only arise if there
is no such significant link. Mr Jaffey sought to contend that s.31 of the
Criminal Justice Act 1948 would render a Crown servant, such as an employee
of GCHQ, criminally liable in such a case because it provides that “any
British subject employed under His Majesty’s Government in the United
Kingdom in the service of the Crown who commits, in a foreign country, when
acting or purporting to act in the course of his employment, any offence
which, if committed in England, would be punishable on indictment, shall be
guilty of an offence”. Although in the event we do not have to answer this
issue, it appears clear to us that, in order for s.31 to avail, there would need to
have been an offence under the CMA, which there would not have been if
there was no significant jurisdictional link, and in any event, just as with the
CMA itself, there would be the requirement to prove ‘double criminality’. As
it is, Issue 2 does not specifically require to be answered, but we conclude that
any act abroad pursuant to ss.5 or 7 of the ISA which would otherwise be an
offence under ss.1 and/or 3 of the CMA would not be unlawful.
Issue 3: Intangible property
24.
Issue 3 as formulated by the parties is: “Does the power under s.5 of ISA to
authorise interference with “property” encompass physical property only, or
does it also extend to intangible legal rights, such as copyright?”.