Judgment Approved by the court for handing down.
SSHD v Watson & Others
that the Divisional Court granted declaratory relief and were this court simply to dismiss the
appeal of the Secretary of State without more, those declarations would stand. No party
before us has suggested that this would be a suitable disposal.
9.
It is common-ground amongst the parties before us that the judgment of the CJEU establishes,
at the very least, that where the purpose is the prevention, investigation, detection and
prosecution of criminal offences:(1)
access to and use of retained communications data should be restricted to the
objective of fighting serious crime; and
(2)
access to retained data should be dependent on a prior review by a court or an
independent administrative body.
I consider that this is correct.
10.
Article 15(1) of Directive 2002/58/EC permits Member States to adopt legislative measures to
restrict the scope of the rights and obligations of the Directive “when such restriction
constitutes a necessary, appropriate and proportionate measure within a democratic society to
safeguard national security (i.e. State security), defence, public security, and the prevention,
investigation, detection, and prosecution of criminal offences or of unauthorised use of the
electronic communication system, as referred to in Article 13(1) of Directive 95/46/EC”. It
provides that, to that end, Member States may, inter alia, adopt legislative measures providing
for the retention of data for a limited period justified on those grounds. The reference made
by the IPT raises squarely the question whether the judgment of the CJEU in the present case
and, in particular, the mandatory requirements identified in that judgment (“the Watson
requirements”) apply where the purpose is that of national security. (See the judgment of the
Investigatory Powers Tribunal at paragraphs 23 and 54.) The IPT stated at paragraph 69 of its
judgment making the reference:“We have carefully considered the evidence before us, both from the
Claimant and the Respondents, and we are persuaded that if the
Watson requirements do apply to measures taken to safeguard
national security, in particular the [Bulk Communications Data]
regime, they would frustrate them and put the national security of the
United Kingdom, and, it may be, other Member States, at risk. It is
to be hoped that, whether by reconsideration, or clarification, of
paragraph 119 of the Judgment, or otherwise, the Grand Chamber
will take the opportunity to consider whether any further statement
than that the safeguarding provisions of the ECHR should apply is
required.”
11.
On behalf of the Secretary of State, Mr Eadie QC submits that the reasoning of the CJEU, in
particular at paragraphs 102, 103, 108, 110-112, 119-120 and 125, is limited to the purpose of
fighting crime. He makes the point that, apart from a reference to public security at paragraph
111, the only reference in the judgment of the CJEU to national security is at paragraph 119.
In that regard, he also refers to the terms of the dispositif. That submission is not accepted by
the respondents or the interveners.
12.
However, it is not necessary for this court to come to a conclusion on that point because the
respondents agree that, in order to avoid pre-empting matters which will have to be
considered on the reference by the IPT, any declaratory relief granted in these proceedings
should be expressly limited to the application of the Watson requirements to cases concerned
with fighting crime. (I should point out that Ms Simor QC who appeared on behalf of the
First and Second Interveners did not agree to such a course but expressly stated that she
would not seek to persuade us to take a different course). I consider that this is the most
appropriate course. In view of the controversy over this issue before the IPT and the fact that