Judgment Approved by the court for handing down.
Davis & Ors v SSHD
was already known to be linked to serious crime.’ This is because investigation is
often needed of lower level individuals whose activities are not themselves considered
to have been serious.
95.
In some circumstances a wholly innocent person’s data might be accessed in order to
assist in the detection of serious crime by others. The need for access to data is not
limited to data directly attributable to particular individuals suspected of having
committed serious crimes. It can be needed in relation to serious crime committed by
anyone. The status of the individual in respect of whom access is sought cannot
determine whether such access should be permitted, although it may of course be
material in considering whether such access is indeed necessary.
96.
As to the definition of serious crimes, the CJEU makes it clear that this is a matter for
national legislatures, so long as the relevant offences are precisely defined and can
properly be regarded as serious. Parliament has not found it difficult in previous
criminal justice legislation to draw up schedules of offences considered serious for
various purposes and it is unlikely to be difficult to so again in the present context.
97.
Turning to the question of the need for judicial or independent review, Mr Eadie drew
our attention to reservations expressed by Sir Anthony May, the Interception of
Communications Commissioner (ICC). These resulted from consideration of how the
requirement of judicial approvals for local authority communications data requests
imposed by the Protection of Freedoms Act 2012 was working. Sir Anthony and his
predecessor Sir Paul Kennedy had consistently been of the view that the requirement
for judicial approval would not be likely to lead to improved standards or ‘have any
impact other than to introduce unnecessary bureaucracy into the process and increase
the costs associated with acquiring the data’. But their criticisms were essentially of
lack of training of magistrates, instances of a failure by magistrates to carry out proper
scrutiny of applications, failure by the Ministry of Justice to introduce an electronic
system to avoid delay and the requirements in some cases for payment of fees.
98.
The provisions of RIPA, as applied by DRIPA, require (as we have noted above) that
an application for access to communication data must be considered by a senior
person who is independent of the investigation. There is already a need for there to be
a written request for approval. The need for that approval to be by a judge or official
wholly independent of the force or body making the application should not, provided
the person responsible is properly trained or experienced, be particularly cumbersome.
The views of Sir Anthony May and Sir Paul Kennedy are entitled to respect; but if EU
law requires independent approval, as we are satisfied it does, that must be put in
place. It is not for us to devise the appropriate system. As to the question of what level
of consideration should be given to applications involving access to data involving
communications with lawyers, Members of Parliament, or journalists, that too is not
for us to determine. We only observe that such cases do require special consideration.
99.
We add the important proviso that the requirement of prior approval relates to access,
not to retention. We see no reason why the exercise of the power to retain should need
prior independent approval, and we do not understand the CJEU to have held that it
does.
Retention in the EU