Judgment Approved by the court for handing down.
23.
Privacy International v Investigatory Powers Tribunal
Mr Jaffey explained the reasons for the delay in raising this ground by reference to the
progress of the Claimant’s various challenges both in the domestic courts and in the
European Court of Human Rights. The lack of clarity, until the Supreme Court’s
judgment, as to the scope for a domestic remedy had led to some complexity as to the
appropriate forum for this particular Article 8 argument to be ventilated.
Acknowledging the passage of years since the publication of the Equipment
Interference Code and since the Tribunal’s judgment, as well as legislative changes, Mr
Jaffey submitted that the argument still raised an important point of public interest.
There would be no prejudice to the Interested Parties in allowing this ground to be
pursued. For these reasons, the court should extend time and exercise its discretion to
permit the Claimant to amend its grounds.
The Interested Parties’ submissions
24.
Sir James Eadie submitted that there was no error of law in the Tribunal’s carefully
reasoned ruling. The national security context was critical to the proper interpretation
of section 5. Directing our attention to various passages in the evidence, he emphasised
the extent of the terrorist threat against the United Kingdom and the importance of CNE
to GCHQ in combatting that threat. The Government’s counter-terrorism operations
inevitably function in a world without certainties. When enacting section 5, Parliament
would have been aware of, and should be presumed to have legislated consistently with,
the operational realities. Any interpretation of section 5 should not require such
specificity that its operational effectiveness would be limited and its protective purpose
undermined.
25.
The Tribunal’s interpretation does not lead to over-broad powers. On a natural reading
of section 5, the mechanisms for the control of the Agencies’ discretion are the
requirements of necessity and proportionality, which the Secretary of State is expressly
directed to consider in section 5(2). Those fundamental safeguards are the core
considerations when issuing a warrant. Provided that the property is described to a
sufficient level of particularity so as to enable the Secretary of State to make a proper
assessment of necessity and proportionality, all relevant statutory controls are satisfied.
26.
Section 5 permits the Agencies to provide levels of particularity to a greater or lesser
extent, depending on their state of knowledge in any given situation. As made clear by
section 6 of the 1994 Act, it may be necessary to act very urgently within the confines
of the section 5 procedure. In this context, the Tribunal were right to conclude that
“specified” cannot have meant anything more restrictive than “adequately described.”
27.
The touchstone for the lawfulness of the warrant cannot be whether or not the exercise
of judgement is involved by those officials executing the warrant: every warrant will
need officials to exercise judgement to some lesser or greater degree, in order to ensure
that the right person and property are targeted in accordance with the words of the
warrant. Nor is it possible to infer the meaning of section 5 from the different words of
section 7: each section has a different function and the breadth of powers under section
7 has no counterpart in section 5. The two sections fall to be separately interpreted.
28.
The common law cases on general warrants are not relevant to the interpretation of a
statutory power. In any event, the Tribunal rightly held that the property covered by a
warrant must be “objectively ascertainable” which imposes a restraint that was lacking