property, but simply for specification of the property, which in our judgment is
a word not of limitation but of description, and the issue becomes one simply
of sufficiency of identification.
40.
The statute does not fall to be interpreted by reference to the underlying Code,
in particular one which, like the E I Code, has been in draft waiting to be
approved by Parliament. But what is of course important is what is put in the
applications to the Secretary of State, so that he can exercise his discretion
lawfully and reasonably. Both in the Property Code, in place since 2002, (at
paragraphs 7.18-7.19) and now in the E I Code (at paragraph 4.6), there is a
lengthy list of what is required to be included in an application to the Secretary
of State for the issue or renewal of a s.5 warrant. Apart from a description of
the proposed interference and the measures to be taken to minimise intrusion,
at the head of the list in both Codes is a requirement to specify “the identity or
identities, where known, of those who possess [or use] the [equipment] that is
to be subject to the interference” and “sufficient information to identify the
[equipment] which will be affected by the interference” (the square bracketed
parts are the changes from the Property Code to the draft E I Code).
41.
We are entirely satisfied that Mr Jaffey’s submissions have confused the
property to be specified with the person or persons whose ownership or use of
the equipment may assist in its identification. We do not accept his
submission (Day 2/12) that the Secretary of State has to consider, by reference
to each individual person who might use or own such equipment, whether
CNE would be justified in each individual case. Questions of necessity and
proportionality to be applied by the Secretary of State must relate to the
foreseeable effect of the grant of such a warrant, and one of the matters to be
considered is the effect and extent of the warrant in the light of the
specification of the property in that warrant.
42.
As originally enacted, s.5(2) authorised the Secretary of State to issue a
warrant “authorising the taking . . . of such action as is specified in the
warrant in respect of any property so specified or in respect of wireless
telegraphy so specified if the Secretary of State:
(a) thinks it necessary for the action to be taken on the ground that it is likely
to be of substantial value in assisting … [our underlining]
(iii) GCHQ in carrying out any function which falls within Section
3(1)(a) and
(b) is satisfied that what the action seeks to achieve cannot reasonably be
achieved by other means and
(c) is satisfied that satisfactory arrangements are in force under … Section
4(2)(a)above with respect to the disclosure of information obtained … and
that any information obtained under the warrant will be subject to those
arrangements”.
43.
“Specified” must mean the same in relation to each action, property and
wireless telegraphy. “Wireless telegraphy” as defined by s.11(e) of ISA meant