Judgment Approved by the court for handing down.
Privacy International v Investigatory Powers Tribunal
“(j) a requirement on him to give access to specified persons to
his place of residence or to other premises to which he has power
to grant access;”
(k) a requirement on him to allow specified persons to search
that place or any such premises for the purpose of ascertaining
whether obligations imposed by or under the order have been,
are being or are about to be contravened;
(l) a requirement on him to allow specified persons, either for
that purpose or for the purpose of securing that the order is
complied with, to remove anything found in that place or on any
such premises and to subject it to tests or to retain it for a period
not exceeding the period for which the order remains in
force;…..”
The Court of Appeal held that these provisions did not permit the inclusion in a control
order of a requirement that the controlee submit to a personal search. Dyson LJ said at
para 44 that “general statutory words will not suffice to permit an invasion of
fundamental rights unless it is clear from the whole statutory context that Parliament
intended to achieve that result.”
Application of these principles to section 5(2) of the 1994 Act
52.
On the basis of these principles, even looking at section 5(2) in isolation, we would
conclude that Parliament deliberately used the word “specified” rather than “of a
specified description” or “described”, and that the provision as drafted does not permit
the issue of a general warrant. But that becomes even clearer when one reads the 1994
Act as a whole.
The contrast with section 7(4)
53.
There is a striking contrast between sections 5(2) and 7(4) of the 1994 Act. The latter,
which only applies to acts done outside the British Islands, permits authorisations which
“may relate to a particular act or acts, to acts of a description specified in the
authorisation or to acts undertaken in the course of an operation so specified”, and “may
be limited to a particular person or person of a description so specified”; and, for good
measure, the opening words of the subsection say that these provisions are “without
prejudice to the generality of the power of the Secretary of State to give an
authorisation” under section 7. There is no such wording in section 5. If Parliament had
wished to use the phrase “property of a description specified in the warrant” in section
5(2) it could have done so. “Specified” and “of a specified description” are not
synonyms, and we consider that the use of different words in the two provisions is
highly significant.
The contrast with the 2016 Act
54.
There is also a contrast between section 5 of the 1994 Act and the regime established
by sections 99-102 of the Investigatory Powers Act 2016 for targeted equipment
interference warrants for the purpose of obtaining communications, equipment data or
any other information. The subject matter to which such warrants may relate is set out