Secretary of State to make the decision on necessity and
proportionality.”
It is plainly from this passage that Mr Jaffey has drawn the basis for his
submissions set out below, and which have led to the formulation of Issue 4.
34.
We prefer however to phrase Issue 4 as: What is the meaning of the words ‘in
respect of any property so specified’ for the purposes of the issue of a s.5
warrant?
35.
Mr Jaffey submits as follows:
i)
The common law sets its face against general warrants, as is well
known from the seminal Eighteenth Century cases such as Entick v
Carrington [1765] 2 Wilson KB 275 and Money v Leach [1765] 3
Burr 1742. As for statute law, he relies on Lord Hoffmann in R v
Secretary of State for the Home Department, Ex p Simms [2000] 2
AC 115 at 131: “Fundamental rights cannot be overridden by general
or ambiguous words”. Thus he takes as a starting point that such
words as were disapproved in the warrant in Money v Leach, relating
to searching for and seizing the papers of the authors, printers and
publishers of the North Briton (wheresoever found), should not be
permitted pursuant to a s.5 warrant, or that a s.5 warrant should not be
defined so as to permit “any property so specified” to include such a
provision.
ii)
He contrasts the provision in s.5(2) for a warrant “in respect of any
property so specified” with the authorisation provided for in s.7, only
available in respect of acts outside the British Islands, which by s.7(4)
“may relate to a particular act or acts, to acts of a description
specified in the authorisation or to acts undertaken in the course of an
operation so specified”. This latter is, and was described by the
Intelligence Services Commissioner in the passage from his Report
quoted above as, a ‘class authorisation’. It relates effectively to any
operation carried out abroad by the Agencies: and there is provision
within the E I Code (paragraphs 7.11-7.14) for situations where,
because “an authorisation under section 7 may relate to a broad class
of operations” (7.11), “Where an authorisation relating to a broader
class of operations has been given by the Secretary of State under
section 7, internal approval to conduct operations under that
authorisation in respect of equipment interference should be sought
from a designated senior official”(7.12). Mr Jaffey submits that this
emphasises the difference between a s.7 authorisation and a s.5
warrant. The former can authorise a broader class of operation, but is
subject to specific subsequent approvals, whereas the latter is not
subject to any such protective or limiting provision.
iii)
Mr Jaffey accepts that the property specified in a s.5 warrant may
include a reference to more than one person or more than one place, up
to an unlimited number, provided they are properly specified. But he
submits that it must not extend to authorising an entire operation or