Judgment Approved by the court for handing down.
Davis & Ors v SSHD
interference with the exercise of the applicants’ rights under
Article 8, irrespective of any measures actually taken against
them.”
The Investigatory Powers Tribunal has adopted the same approach in this jurisdiction:
see Liberty v GCHQ and others [2015] 3 All ER 142 at paragraph 4(ii).
Privilege
67.
The Code of Practice issued by the Secretary of State states that communication data
will not be subject to legal professional privilege since there will be no access to the
contents of retained communications. The Law Society made written submissions
which challenge the correctness of this statement. Reliance is placed on a dictum of
Cotton LJ in Gardner v. Irvin (1878) 4 Ex D 49 at 83 where he said:“I think that the plaintiffs are not entitled to have the dates of
the letters and such other particulars of the correspondence as
may enable them to discover indirectly the contents of the
letters, and thus to cause the defendants to furnish evidence
against themselves in this action”.
This approach was confirmed by Vinelott J in Derby v. Weldon (No 7) [1990] 1 WLR
1156.
68.
No doubt such an example of privilege would rarely arise. However, communications
with practising lawyers do need special consideration. The same in our view can
properly be said to apply to communications with MPs. The Code of Practice makes
clear the need for such special attention.
The claimants’ case on Digital Rights Ireland
69.
The Claimants make numerous criticisms of DRIPA on the merits. As we have
already observed, we are not concerned with those, but with whether s 1 of the Act is
incompatible with the requirements of EU law as interpreted by the CJEU in Digital
Rights Ireland. Ms Rose’s skeleton argument suggested that the CJEU decided that
data retention legislation, if it is to be compatible with EU law, must:
i)
restrict retention to data which relates to public security, and in particular
restrict retention to a particular time period, a geographical area and/or
suspects or persons whose data would contribute to the prevention, detection
or prosecution of serious criminal offences [paragraph 59];
ii)
provide for there to be exceptions for persons whose communications are
subject to an “obligation of professional secrecy” (including Members of
Parliament, lawyers and journalists) [58];
iii)
restrict access and use of the data to the purposes of prevention, detection or
prosecution of defined, sufficiently serious crimes [60-61];
iv)
“above all” ensure that an independent administrative or judicial body carries
out a prior review of decisions regarding access to the data on the basis of
what is strictly necessary [62];