Judgment Approved by the court for handing down.
Privacy International v Investigatory Powers Tribunal
test is not in our judgment different -Are the actions and the
property sufficiently identified? The Home Secretary's own
words as recorded in paragraph 42 of the ISC Report, set out in
paragraph 32 above, relating to a s.8(1) warrant, are applicable
here also. It is not in our judgment necessary for a Secretary of
State to exercise judgment in relation to a warrant for it to be
limited to a named or identified individual or list of individuals.
The property should be so defined, whether by reference to
persons or a group or category of persons, that the extent of the
reasonably foreseeable interference caused by the authorisation
of CNE in relation to the actions and property specified in the
warrant can be addressed.
39. As discussed in the course of argument, the word under
consideration is simply specified, and this may be contrasted
with other statutes such as those relating to letters of request,
where the requirement of the Evidence (Proceedings in Other
Jurisdictions) Act 1975 is for "particular documents specified''.
There is no requirement here for specification of particular
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 EI 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 EI 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