Judgment Approved by the court for handing down.
SSHD v Watson & Others
the CJEU when it considers the pending reference by the Investigatory Powers Tribunal (See
IPT judgment, paragraphs 62-64).
A declaration reflecting paragraph 1 of the dispositif
22.
At paragraphs 106 – 112 of its judgment the CJEU addresses the question of the relationship
between the data which must be retained and a threat to public security. In this section of the
judgment it is addressing the question referred by the Swedish court on the basis of the
relevant Swedish legislation. At paragraph 111 the CJEU stated:
“As regards the setting of limits on such a measure with respect to
the public and the situations which may potentially be affected, the
national legislation must be based on objective evidence which
makes it possible to identify a public whose data is likely to reveal a
link, at least an indirect one, with serious criminal offences, and to
contribute in one way or another to fighting serious crime or to
preventing a serious risk to public security. Such limits may be set
by using a geographical criterion where the competent national
authorities consider, on the basis of objective evidence, that there
exists, in one or more geographical areas, a high risk of preparation
for or commission of such offences.”
In paragraph 112 the CJEU then states its answer to the question referred by the Swedish
court in identical terms to paragraph 1 of the dispositif.
23.
Mr Drabble QC, on behalf of the Second and Third Respondents, submits that this court
should grant declaratory relief reflecting the fact that DRIPA does not proceed by reference to
objective evidence which makes it possible to identify a public whose data is likely to reveal a
link, whether direct or indirect, with serious criminal offences. On behalf of the Secretary of
State, Mr Eadie submits that this passage of the judgment of the CJEU is based on the
Swedish legislation and that it is not appropriate for this court to move from the general
principle stated by the CJEU to the conclusion that DRIPA suffers from the same vice.
24.
I initially took the view that the general principle stated by the CJEU at paragraphs 106-112
of its judgment and in paragraph 1 of the dispositif is one of general application and that, as
DRIPA did not include any such limitations, it was appropriate to grant declaratory relief
reflecting this fact. However, when a draft judgment and draft order were circulated to the
parties and interveners in advance of handing down judgment, counsel for the Appellant
lodged further written submissions in which they drew attention to matters which had not
been drawn to our attention in the course of the oral hearing. The Appellant invited the court
to decline to exercise its discretion to make the proposed declaration on this point.
25.
The procedure governing the circulation of draft judgments does not permit the making of
such further submissions (R (Edwards) v. Environment Agency (Note) [2008] 1 WLR 1587).
However, it appears that there was some confusion as to the procedural steps to be taken
following the oral hearing, and that the Appellant was awaiting further written submissions
from the First Respondent before herself making further written submissions with the court’s
permission. Furthermore, in the light of the public importance of the matters raised the
members of the court took the view that we should, exceptionally, invite further submissions
from the Respondents and the Interveners on the matters raised by the Appellant. We have
now received written submissions in response from the Respondents and the Interveners. We
note, in passing, that the submissions lodged by the First Respondent do not address the
current issue and those of the Second and Third Respondents simply state that the correct
interpretation of paragraphs 55 to 65 of the Digital Rights judgment was and must have been
anxiously considered by all the parties and the court during the current proceedings.