been supplied to us, attached as Appendix III: again the underlining denotes
gisting.
88.
Even without such corrections, Mr Jaffey made clear that none of his criticisms
would result in this case in the whole system being unlawful, but it is accepted
that there might on the facts (including the facts relating to these Claimants) be
a case in which LPP communications have been inappropriately dealt with by
virtue of the absence of accurate guidance or policy at the time, and thus amount
to a breach of Article 8. There is no need for us to give any specific conclusion
in relation to this issue, the discussion of which has once again proved the value
of these inter partes proceedings.
Conclusion
89.
Our conclusions in relation to the above Issues, where material, are
consequently as follows.
(i) Issue 1: An act (CNE) which would be an offence under s.3 of the
CMA is made lawful by a s.5 warrant or s.7 authorisation, and the
amendment of s.10 CMA was simply confirmatory of that fact.
(ii) Issue 2: An act abroad pursuant to ss.5 or 7 of the ISA which would
otherwise be an offence under ss.1 and/or 3 of the CMA would not be
unlawful.
(iii) Issue 3: The power under s.5 of ISA to authorise interference with
property encompasses intangible property.
(iv) Issue 4: A s.5 warrant is lawful if it is 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, and it need not be
defined by reference to named or identified individuals.
(v) Issue 5: There might be circumstances in which an individual claimant
might be able to claim a breach of Article 8/10 rights as a result of a s.7
authorisation, but that does not lead to a conclusion that the s.7 regime is
non-compliant with Articles 8 or 10.
(vi) Issue 6: A s.5 warrant which accords with the criteria of specification
referred to in Issue 4 complies with the safeguards referred to in Weber
(1) to (3), and consequently with Articles 8 and 10 in that regard.
(vii) Issue 7: If information were obtained in bulk through the use of CNE,
there might be circumstances in which an individual complainant might be
able to mount a claim, but in principle CNE is lawful.
(viii) Issue 8: The s.5 regime since February 2015 is compliant with
Articles 8/10.