suite of operations, and that identification cannot depend upon the
belief, suspicion or judgment of the officer acting under the warrant. It
must also be possible to identify the property/equipment at the date of
the warrant. Thus a warrant permitting CNE in respect of computers
owned or used by any diplomatic representatives of the State of
Ruritania, or by any member of a named proscribed organisation, is not
adequate because (i) who they are is thus left open (unless a list of
names is provided to be attached to the warrant); (ii) it is not limited to
those who are part of that group at the time of the warrant; (iii) it leaves
too much to the belief, suspicion or judgment of the officer, and
deprives a Secretary of State of the opportunity to exercise his required
discretion as to the necessity and proportionality of the warrant. Mr
Jaffey submitted (Day 2/12) that the Secretary of State had to consider
before granting a warrant whether or not such intrusion would be
justified in the case of each individual.
iv)
36.
Mr Jaffey had made reference to Hansard in respect of discussion in
Parliament in 1989, prior to the passage of the Security Service Act
1989, but both parties agreed that this was of no assistance. However
Mr Jaffey also referred to the IP Bill, referred to in paragraph 11(iii)
above, for the purpose of showing what is now proposed, by reference
to clause 83 in Part 5 of the Bill. The IP Bill provides, by clause 81,
for a new warrant, to be called a “targeted equipment interference
warrant”, and the broad definition of the subject matter of such
proposed warrant is set out in clause 83, including eight permitted such
targets including, by way of example “(a) equipment belonging to,
used by or in the possession of the particular person or organisation”
and “(b) equipment belonging to, used by or in the possession of
persons who form a group that shares a common purpose or who carry
on, or maybe carrying on, a particular activity”. His submission is that
such defined targets are much wider than what he submits is the more
limiting ambit of a s.5 warrant.
Mr Eadie responds as follows:
i)
As to the Eighteenth Century common law cases, they are at best of
marginal relevance. They plainly relate to the limitation on common
law powers in relation to executive acts within the United Kingdom.
S.5 is not limited to acts within the United Kingdom and in any event is
a creature of statute. The legislative context and intent relate to the
powers of the Secretary of State in respect of the protection of national
security, and substantial limitation is imposed by the requirement of the
section itself to consider whether the warrant falls within the statutory
purposes of the agency applying for it (s.3(1) so far as concerns
GCHQ) (“legality”), necessity and proportionality. The word
“specified” is used three times in s.5(2), relating to the actions sought
to be authorised and in respect of any property or “wireless
telegraphy”. He submits that what is required is the best description
possible. Even a s.8(1) warrant under RIPA, which is expressly more
limited, can have a broad ambit, as discussed in paragraph 32 above,