Judgment Approved by the court for handing down.
SSHD v Watson & Others
national legislation governing the protection and security of traffic
and location data and, in particular, access of the competent national
authorities to the retained data, where the objective pursued by that
access, in the context of fighting crime, is not restricted solely to
fighting serious crime, where access is not subject to prior review of
a court or an independent administrative authority, and where there is
no requirement that the data concerned should be retained within the
European Union.
3. The second question referred by the Court of Appeal (England &
Wales) (Civil Division) is inadmissible.”
4.
It appears that the first paragraph of the dispositif reflects the language of the Swedish
legislation which was the subject of the reference by the Swedish court, whereas paragraphs 2
and 3 of the dispositif reflect the questions referred by this court.
5.
Following the handing down of the judgment of the CJEU, a considerable delay occurred
before the matter was listed before this court for further hearing. At the prompting of the
court it was listed for hearing on 7 June 2017 but that hearing was vacated because of the
non-availability of certain counsel. The case has now been relisted for hearing before us.
6.
There have been several developments since the judgment of the CJEU.
(1)
(2)
(3)
Sections 1 and 2 of the Data Retention and Investigatory Powers Act 2014
(“DRIPA”) were repealed on 30 December 2016.
The legislation which has replaced the data retention arrangements under DRIPA, i.e.
Part 4 of the Investigatory Powers Act 2016, is itself the subject of a judicial review
claim brought by Liberty. This includes a challenge to the 2016 Act on grounds of
non-compliance with the CJEU’s judgment in the present case. Permission to apply
for judicial review has been granted and a substantive hearing of the claim is due to
be heard in the Administrative Court on 27 and 28 February 2018.
In proceedings brought by Privacy International against the Secretary of State for
Foreign and Commonwealth Affairs and others the Investigatory Powers Tribunal
(“the IPT”) on 8 September 2017 made a further reference to the CJEU seeking, inter
alia, to clarify the extent to which, if at all, the requirements set out in the CJEU’s
judgment in the present case apply in a national security context. (Judgment of
Investigatory Powers Tribunal UKIPTrib IPT_15_110_CH). The questions referred
are as follows:“In circumstances where:
a.
the SIAs' capabilities to use BCD supplied to them are essential
to the protection of the national security of the United
Kingdom, including in the fields of counter-terrorism, counterespionage and counter-nuclear proliferation;
b.
a fundamental feature of the SIAs’ use of the BCD is to
discover previously unknown threats to national security by
means of non-targeted bulk techniques which are reliant upon
the aggregation of the BCD in one place. Its principal utility
lies in swift target identification and development, as well as
providing a basis for action in the face of imminent threat;
c.
the provider of an electronic communications network is not
thereafter required to retain the BCD (beyond the period of