and the inclusion of “wireless telegraphy” in the section is significant,
being very broadly defined (see s.11(e) of the ISA) by reference to
what was then the Wireless Telegraphy Act 1949 (now 2006), and, as
Mr Jaffey accepted, could extend to an entire communications
frequency or a group of communications frequencies.
1
ii)
S.7 is a different provision. It relates to the “Authorisation of acts
outside the British Islands”, and is not in direct contrast with, or
alternative to, s.5 (in the way for example that s.8(1) and s.8(4) fall to
be contrasted in RIPA). Mr Jaffey accepts that a s.5 warrant can
extend to property owned or used by a group of persons, and there may
therefore be occasions in which the scope of a s.5 warrant may cover
similar conduct to an operation which, if overseas, could be sanctioned
under s.7, but it is nevertheless directed at specified property. Only in
2001 was s.7 amended so as to add the power for GCHQ to seek a s.7
authorisation, by the Anti-terrorism, Crime and Security Act 2001.
Until then GCHQ could only rely on s.5. Thus in any event there was
no such contrast between s.5 and s.7 so far as concerned GCHQ at the
date of the passage of the Act.
iii)
Mr Eadie does not accept any of the limiting propositions set out in
paragraph 35(iii) above. He submits that the requirement is for the
actions and property to be objectively ascertainable. The examples
referred to above, both as to Ruritania and proscribed organisations, are
in his submission entirely proper and adequate. It is not necessary to
identify persons any more than is possible at the time of the issue of the
warrant, and it is certainly not necessary for the individuals to be
identified by name or by reference to the particular time when the
warrant is issued. A warrant could cover, in the examples given,
anyone who was at any time during the duration of the warrant (six
months unless specifically renewed) within the defined group. What is
important is that an application for a warrant contains as much
information as possible to enable a Secretary of State to make a
decision as to whether to issue a warrant, and, if so, as to its scope.
This might involve reducing or putting a limit on the persons or
category of persons covered, or defining property by reference to such
a restriction. He submits that what is fundamental is the duty imposed
on the Secretary of State to consider whether the warrant is within the
powers of the agency applying for it (legality) and whether the issue of
the warrant would satisfy the tests of necessity and proportionality.
That is the discipline referred to in paragraph 88 of R (Miranda) -vSecretary of State for The Home Department [2014] 1 WLR per
Laws LJ. 1 Mr Jaffey points out that the requirement for proportionality
was not introduced into s.5 by amendment until after the introduction
of the Human Rights Act 2000, by the passage of RIPA, and that it
cannot have been intended thereby to alter the scope of a lawful
warrant under s.5. Mr Eadie points to the words of Lord Toulson in R
The decision in the Court of Appeal ([2016] EWCA Civ.6), subsequent to the hearing before us, does
not question the importance of this discipline, but considers the overlay of Article 10 in relation to
press freedom (per Lord Dyson MR at paras 98-117).