contained in S.22(2) of the Regulation of Investigatory Powers Act 2000
(“RIPA”). It is clear that (save for the short passage in one paragraph of the
Judgment, 119), the conclusion by the Grand Chamber in Watson was
reached by reference to the investigation of crime, not national security; and
the Court in any event made clear (paragraph 115) that it was only serious
crime (i.e. not such crime as was within the remit of the Swedish statute)
which could justify access to such retained data. S.94, as made clear in the
October Judgment, and as set out in paragraph 19 above, relates to the
directions by the Secretary of State to PECNs to supply BCD to GCHQ and
MI5 (not retain it themselves), as necessary and proportionate in the interests
of national security (or of relations with foreign governments).
24.
The Watson judgment falls primarily into two parts. The first consists of
consideration of the scope of the EPD, addressing the Swedish statute and then
DRIPA.
25.
As to this part, the consideration of the scope of the EPD commences in
paragraph 65 of the Judgment, and in paragraphs 68 to 71 refers to Article 1 of
the EPD, and in particular Article 1(3), noting that it excluded from the scope
of the Directive “the activities of the State in areas of criminal law and in the
areas of public security, defence and State security, including the economic
well-being of the State when the activities relate to State security matters.”
Reference is made to judgments of the European Court, not including
Parliament v Council. Paragraph 70 refers to Article 3 of the EPD, which
states that the Directive does apply to the processing of personal data by
providers of electronic communication services, and paragraph 71 then refers
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