Judgment Approved by the court for handing down.
26.
SSHD v Watson & Others
On further consideration, I have come to the conclusion that this court should decline to grant
declaratory relief under this head for the following reasons.
(1) First, I am satisfied that this specific point has not been in issue in the present proceedings. In
particular, it has not previously been argued in these proceedings that DRIPA was unlawful
because it did not require there to be an identified public whose data was likely to reveal a
direct or indirect link with serious criminal offences. There has been no evidence or argument
on this point specific to DRIPA. The issue has been raised for the first time only following the
decision of the CJEU in relation to the Swedish legislation. On the contrary, it has been the
position of the Respondents that EU law permits a general retention regime provided it is
accompanied by appropriate safeguards for access. During the course of argument before the
Divisional Court, counsel for the First Respondent accepted that the CJEU in Digital Rights
Ireland “cannot have meant that [communications service providers] can only lawfully be
required to retain the communications data of “suspects or persons whose data would
contribute to the prevention, detection or prosecution of serious criminal offences” as such a
restriction would be wholly impracticable (Divisional Court Judgment at paragraph 70).
Before this court the Respondents expressly adopted the conclusion of the Divisional Court
that “the solution to the conundrum” is that “a general retention regime for communications
data infringes ... the EU Charter unless it is accompanied by an access regime (laid down at
national level) which provides adequate safeguards for those rights.” (Divisional Court
Judgment, at paragraph 89; First Respondent’s Skeleton Argument, at paragraph 59; Second
and Third Respondents’ Skeleton Argument at paragraph 8).
(2) Secondly, the reasoning of the CJEU at paragraphs 106 – 112 is closely linked to the language
and effect of the Swedish statute and, in particular, its requirement of blanket retention of all
communications data by all communications service providers. I accept that the analysis and
conclusions of the CJEU in this regard are not necessarily susceptible of automatic
application to the different scheme of DRIPA.
(3) Thirdly, the effect of this section of the judgment of the CJEU is a live issue in the pending
proceedings in which Liberty challenges Part 4, Investigatory Powers Act 2016, which is due
to be heard in February 2018. I consider that it is appropriate for this issue to be addressed in
those proceedings where the court will have the benefit of detailed evidence, and full
pleadings and submissions.
Terms of Declaration
27.
In these circumstances I consider that it is appropriate to grant declaratory relief in the
following terms:
Section 1 of the Data Retention and Investigatory Powers Act 2014 was inconsistent
with EU law to the extent that, for the purposes of the prevention, investigation,
detection and prosecution of criminal offences, it permitted access to retained data:(a)
where the object pursued by that access was not restricted solely to fighting
serious crime; or
(b)
where access was not subject to prior review by a court or an independent
administrative authority.
Sir Geoffrey Vos, Chancellor of the High Court:
28.
I agree.
Lord Justice Patten:
29.
I also agree.