“the emitting or receiving over paths which are not provided by any material
substance constructed or arranged for that purpose, of electro magnetic
energy or frequency not exceeding 3 million megacycles per second . . .”.
(S.19(1) Wireless Telegraphy Act 1949).
44.
Given the width of meaning contained in the words “action” and “wireless
telegraphy” and, at least potentially, in the word “property”, specified cannot
have meant anything more restrictive than ‘adequately described’. The key
purpose of specifying is to permit a person executing the warrant to know
when it is executed that the action which he is to take and the property or
wireless telegraphy with which he is to interfere is within the scope of the
warrant.
45.
It therefore follows that a warrant issued under s.5 as originally enacted was
not required:
i)
to identify one or more individual items of property by reference to
their name, location or owner or
ii)
to identify property in existence at the date on which the warrant was
issued.
Warrants could therefore, for example, lawfully be issued to permit GCHQ to
interfere with computers used by members, wherever located, of a group
whose activities could pose a threat to UK national security, or be used to
further the policies or activities of a terrorist organisation or grouping, during
the life of a warrant, even though the members or individuals so described
and/or of the users of the computers were not and could not be identified when
the warrant was issued.
46.
The amendment of s.7 in 2001 to add GCHQ cannot alter the meaning of s.5,
which has, in all respects relevant to this Issue, remained unchanged.
47.
In our judgment what is required is for the warrant to be as specific as possible
in relation to the property to be covered by the warrant, both to enable the
Secretary of State to be satisfied as to legality, necessity and proportionality
and to assist those executing the warrant, so that the property to be covered is
objectively ascertainable.
Issue 5: Scope of the Convention
48.
Issue 5 is the question: Do Articles 8/10 apply to a complaint by reference to a
s.7 authorisation? This issue only arose specifically in the course of the
hearing, in which the Tribunal is of course being asked to decide pursuant to
the List of Issues whether “the regime which governs [CNE] is ‘in accordance
with the law’ under Article 8(2) ECHR ‘prescribed by law’ under Article 10(2)
ECHR” (original Legal Issue 4).
49.
S.7 applies, as is clear from its heading, to “authorisation of acts outside the
British Islands”. S.7 was not dealt with in the Property Code, and there is no
power for the Secretary of State to issue Codes of Practice in relation to s.7, by