Judgment Approved by the court for handing down.
Davis & Ors v SSHD
“designated persons must be independent from operations and investigations when
granting authorisations or giving notices related to those operations”.
61.
In the case of communications data involving certain professions, the revised Code
provides as follows:
“3.72 Communications data is not subject to any form of
professional privilege – the fact that a communication took
place does not disclose what was discussed, considered or
advised.
3.73 However the degree of interference with privacy may be
higher where the communications data being sought relates to a
person who is a member of a profession that handles privileged
or otherwise confidential information (such as a medical
doctor, lawyer, journalist, Member of Parliament, or minister of
religion). It may also be possible to infer an issue of sensitivity
from the fact someone has regular contact with, for example, a
lawyer or journalist.
3.74 Such situations do not preclude an application being made.
However applicants, giving special consideration to necessity
and proportionality, must draw attention to any such
circumstances that might lead to an unusual degree of intrusion
or infringement of privacy, and clearly note when an
application is made for the communications data of a medical
doctor, lawyer, journalist, Member of Parliament, or minister of
religion. Particular care must be taken by designated persons
when considering such applications. That such an application
has been made must be recorded (see section 6 on keeping of
records for more details).”
The scope of Article 15(1) of the e-Privacy Directive
62.
One issue raised in the skeleton arguments, particularly that submitted on behalf of
the first and second interveners, was that s1 of DRIPA was in breach of EU law on the
simple grounds that it allows retention of traffic data for purposes other than those
expressly permitted by article 15 of the e-Privacy Directive, namely “to safeguard
national security (i.e. state security), defence, public security and the prevention,
investigation, detection and prosecution of criminal offences”. Since the list of
purposes permitted by s22(2) of RIPA, and therefore by s1 of DRIPA, goes beyond
this list, it was submitted that the statute can be seen to be incompatible on its face
without reference to the EU Charter or the judgment in Digital Rights Ireland. The
argument was taken up by counsel for the claimants.
63.
However, Mr Eadie drew our attention to the inclusion in article 15(1) of the ePrivacy Directive of a reference to article 13(1) of the Data Protection Directive; and
to the fact that in R (British Telecommunications PLC) v Secretary of State for
Culture, Olympics, Media and Sport [2012] Bus LR 1766 the Court of Appeal,
following the decision of the CJEU in Promusicae (Case C-275/06), held that the
grounds for derogation under article 15(1) of the e-Privacy Directive included the