Judgment Approved by the court for handing down.
Privacy International v Investigatory Powers Tribunal
by being on the FCO Syrian diplomatic list, or being in residence at 1 Acacia Avenue)
on the date of issue of the warrant, but who came within it at some future point during
the period for which it was in force.
61.
We do not agree with Mr Jaffey that a warrant could never lawfully permit the use of
CNE across a broad geographical area (such as a town or city). The boundaries of a
geographical area, at least if it is a local authority area (such as the city of Birmingham,
or the county of Kent), are capable of being specified in a warrant under section 5(2).
Whether the issue of a warrant to allow interference with every mobile phone in
Birmingham could ever be justified as being necessary and proportionate is a different
question, which does not arise in these proceedings.
62.
We do not regard section 5 as limited to factual situations as at the date of the warrant:
that is not what the section means. A warrant in respect of “any device used at the
Acacia Avenue Internet Café during the period of six months from the date of issue of
the warrant” would in our view be sufficiently specific, as would “anyone who appears
on the FCDO Ruritanian diplomatic list during the period of six months from the date
of the warrant”.
63.
However, we consider that a warrant which referred to the property of anyone engaged
in an activity (for example “the mobile phone of any person conspiring to commit acts
of terrorism”) would be insufficiently specific to satisfy the requirements of section
5(2). Whether a warrant which refers to the property of anyone suspected of being a
member of an organisation, but not named or otherwise identified in the warrant, is
sufficiently specific will be a fact-sensitive question, the answer to which will depend
on whether a person’s membership of the organisation is objectively ascertainable.
64.
We would therefore answer the question of law in Issue 4 by declaring that a warrant
under section 5 of the 1994 Act will be lawful if it is sufficiently specific for the
property concerned to be objectively ascertainable on the face of the warrant, in the
sense we have set out in paragraphs 57 to 64 of this judgment.