Judgment Approved by the court for handing down.
Privacy International v Investigatory Powers Tribunal
in great detail in section 101(1). It includes, for example, “equipment belonging to, used
by or in possession of a group of persons who share a common purpose or who carry
on, or may carry on, a particular activity (section 101(1)(b)) or “which is being, or may
be, used for the purposes of a particular activity or activities of a particular description”
(section 101(1)(f)). As with section 7 of the 1994 Act, the contrast between these very
broad powers and the use of the word “specified” in section 5 of the 1994 Act is striking.
It is also to be noted that, as we have said, section 5 of the 1994 Act is still in force in
relation to CNE for the purpose of disrupting or destroying a target’s electronic
capability, as well as for activities such as interference with vehicles or other tangible
property. The fact that Parliament left its wording unaltered while using entirely
different wording for creating new powers of equipment interference strongly suggests
to us a deliberate decision to maintain a distinction between the breadth of the relevant
powers. It may be that, as Sir James submits, a later statute cannot generally be used to
interpret an earlier one; but we do not consider that this rule applies where the later
statute has partly replaced the earlier provision but partly left it in force.
Conclusions on Issue 4
55.
The Tribunal’s formulation was that the warrant must be “as specific as possible… so
that the property to be covered is objectively ascertainable”; the latter phrase not being
derived from the statute but from Sir James’ submissions. They said that this
requirement was for two reasons: (1) to enable the Secretary of State to make a decision
as to legality, necessity and proportionality and (2) to assist those executing the warrant.
56.
With respect, we do not follow the logic of the first of these two reasons. It is the
application, not the warrant itself, which the Secretary of State has to consider. Section
5 does not lay down requirements about the application for the warrant, but as to the
content of the warrant itself, which is the Secretary of State’s document.
57.
The real point, as it seems to us, is whether the warrant is on its face sufficiently specific
to indicate to individual officers at GCHQ – who for these purposes are the successors
to the King’s Messengers in the 1760s – whose property, or which property, can be
interfered with, rather than leaving it to their discretion. That is what we understand by
the words “objectively ascertainable” (though they are not used in the statute).
58.
The requirement for warrants (except pursuant to the urgency provisions) to be “under
the hand of the Secretary of State” and thus be the product of a decision taken by him
or her personally further emphasises that Parliament regarded it as impermissible to
delegate to an official the decision as to whose property is to be interfered with.
59.
As Mr Jaffey accepted, a warrant under section 5(2) may properly be issued in respect
of one or more mobile phones or other devices with listed serial numbers; those used
by one or more named individuals; those located or being used at one or more sets of
premises, such as 1 and 2 Acacia Avenue; any device used (in his example) by “persons
who at today’s date are on the FCDO Syrian diplomatic list”; and any device used
(again, in his example) by “the blonde haired man, name unknown, seen leaving 1
Acacia Avenue on 1 December 2015”.
60.
Turning to location, Mr Jaffey was prepared to concede that the whole of Acacia
Avenue could be included, but not a large area such as Birmingham. He did not agree
that a warrant could properly cover anyone who was not within its scope (for example,