QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE FARBEY
| PRIVACY INTERNATIONAL
|- and -
|INVESTIGATORY POWERS TRIBUNAL
|- and -
|SECRETARY OF STATE FOR FOREIGN, COMMONWEALTH AND DEVELOPMENT AFFAIRS
- and -
GOVERNMENT COMMUNICATION HEADQUARTERS
The Defendant Tribunal did not appear and was not represented.
Sir James Eadie QC and Richard O'Brien (instructed by Government Legal Department) for the Interested Parties
Hearing dates: 8-9 December 2020
Crown Copyright ©
Lord Justice Bean and Mrs Justice Farbey:
"Issue 1: An act (CNE) which would be an offence under s.3 of the CMA is made lawful by a s.5 warrant or s. 7 authorisation, and the amendment of s. l0 CMA was simply confirmatory of that fact.
Issue 2: An act abroad pursuant to ss.5 or 7 of the ISA which would otherwise be an offence under ss.1 and/or 3 of the CMA would not be unlawful.
Issue 3: The power under s.5 of ISA to authorise interference with property encompasses intangible property.
Issue 4: A s.5 warrant is lawful if it is as specific as possible in relation to the property to be covered by the warrant, both to enable the Secretary of State to be satisfied as to legality, necessity and proportionality and to assist those executing the warrant, so that the property to be covered is objectively ascertainable, and it need not be defined by reference to named or identified individuals.
Issue 5: There might be circumstances in which an individual claimant might be able to claim a breach of Article 8/10 rights as a result of a s.7 authorisation, but that does not lead to a conclusion that the s.7 regime is non-compliant with Articles 8 or 10.
Issue 6: A s.5 warrant which accords with the criteria of specification referred to in Issue 4 complies with the safeguards referred to in [the decision of the European Court of Human Rights in] Weber (1) to (3), and consequently with Articles 8 and 10 in that regard.
Issue 7: If information were obtained in bulk through the use of CNE, there might be circumstances in which an individual complainant might be able to mount a claim, but in principle CNE is lawful.
Issue 8: The s.5 regime since February 2015 is compliant with Articles 8/10.
Issue 9: The s.5 regime prior to February 2015 was compliant with Articles 8/10.
Issue 10: So far as concerns the adequacy of dealing with LPP, the CNE regime has been compliant with the Convention since February 2015."
The relevant statutes
"authorising the taking ... of such action as is specified in the warrant in respect of any property so specified or in respect of wireless telegraphy so specified if the Secretary of State:
(a) thinks it necessary for the action to be taken on the ground that it is likely to be of substantial value in assisting ...
in carrying out any function which falls within Section 3(l)(a) and
(b) is satisfied that what the action seeks to achieve cannot reasonably be achieved by other means and
(c) is satisfied that satisfactory arrangements are in force under . . . section 4(2)(a) above with respect to the disclosure of information obtained ... and that any information obtained under the warrant will be subject to those arrangements".
5 Warrants: general
(1) No entry on or interference with property or with wireless telegraphy shall be unlawful if it is authorised by a warrant issued by the Secretary of State under this section.
(2) The Secretary of State may, on an application made by . . . GCHQ, issue a warrant under this section authorising the taking, subject to subsection (3) below, of such action as is specified in the warrant in respect of any property so specified or in respect of wireless telegraphy so specified if the Secretary of State –
(a) thinks it necessary for the action to be taken for the purpose of assisting
(iii) GCHQ in carrying out any function which falls within section 3(J)(a) above; and
(b) is satisfied that the taking of the action is proportionate to what the action seeks to achieve;
(c) is satisfied that satisfactory arrangements are in force under section 2(2)(a) of the [Security Service Act 1989 ("the 1989 Act")] (duties of the Director-General of the Security Service), section 2(2)(a) above or section 4(2)(a) above with respect to the disclosure of information obtained by virtue of this section and that any information obtained under the warrant will be subject to those arrangements.
(2A) The matters to be taken into account in considering whether the requirements of subsection (2)(a) and (b) are satisfied in the case of any warrant shall include whether what it is thought necessary to achieve by the conduct authorised by the warrant could reasonably be achieved by other means.
(3) A warrant issued on the application of the Intelligence Service or GCHQ for the purposes of the exercise of their functions by virtue of section . . . 3(2)(c) above may not relate to property in the British Islands.
(3A) A warrant issued on the application of the Security Service for the purposes of the exercise of their function under section 1 (4) of the Security Service Act 1989 may not relate to property in the British Islands unless it authorises the taking of action in relation to conduct within subsection (3B) below.
(3B) Conduct is within this subsection if it constitutes (or, if it took place in the United Kingdom, would constitute) one or more offences, and either –
(a) it involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose; or
(b) the offence or one of the offences is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more.
(4) Subject to subsection (5) below, the Security Service may make an application under subsection (2) above for a warrant to be issued authorising that Service (or a person acting on its behalf) to take such action as is specified in the warrant on behalf of the Intelligence Service or GCHQ and, where such a warrant is issued, the functions of the Security Service shall include the carrying out of the action so specified, whether or not it would otherwise be within its functions.
(5) The Security Service may not make an application for a warrant by virtue of subsection (4) above except where the action proposed to be authorised by the warrant-
(a) is action in respect of which the Intelligence Service or, as the case may be, GCHQ could make such an application; and
(b) is to be taken otherwise than in support of the prevention or detection of serious crime.
6 Warrants: procedure and duration, etc.
(1) A warrant shall not be issued except-
(a) under the hand of the Secretary of State or…….
(b) in an urgent case where the Secretary of State has expressly authorised its issue and a statement of that fact is endorsed on it, under the hand of a senior official; or…….
(d) in an urgent case where the Secretary of State has expressly authorised the issue of warrants in accordance with this paragraph by specified senior officials and a statement of that fact is endorsed on the warrant, under the hand of the specified officials.
(1A) But a warrant issued in accordance with subsection (1)(d) may authorise the taking of an action only if the action is an action in relation to property which, immediately before the issue of the warrant, would, if done outside the British Islands, have been authorised by virtue of an authorisation under section 7 that was in force at that time.
(1B) A senior official who issues a warrant in accordance with subsection (l)(d) must inform the Secretary of State about the issue of the warrant as soon as practicable after issuing it.
(2) A warrant shall, unless renewed under subsection (3) below, cease to have effect-
(a) if the warrant was under the hand of the Secretary of State, ……..at the end of the period of six months beginning with the day on which it was issued; and
(b) in any other case, at the end of the period ending with the second working day following that day.
(3) If at any time before the day on which a warrant would cease to have effect the Secretary of State considers it necessary for the warrant to continue to have effect for the purpose for which it was issued, he may by an instrument under his hand renew it for a period of six months beginning with that day.
(4) The Secretary of State shall cancel a warrant if he is satisfied that the action authorised by it is no longer necessary.
(5) In the preceding provisions of this section "warrant" means a warrant under section 5 above.
7. Authorisation of acts outside the British Islands
(1) If, apart from this section, a person would be liable in the United Kingdom for any act done outside the British Islands, he shall not be so liable if the act is one which is authorised to be done by virtue of an authorisation given by the Secretary of State under this section.
(2) In subsection (1) above "liable in the United Kingdom" means liable under the criminal or civil law of any part of the United Kingdom.
(3) The Secretary of State shall not give an authorisation under this section unless he is satisfied –
(a) that any acts which may be done in reliance on the authorisation or, as the case may be, the operation in the course of which the acts may be done will be necessary for the proper discharge of a function of the Intelligence Service or GCHQ; and
(b) that there are satisfactory arrangements in force to secure-
(i) that nothing will be done in reliance on the authorisation beyond what is necessary for the proper discharge of a function of the Intelligence Service or GCHQ; and
(ii) that, in so far as any acts may be done in reliance on the authorisation, their nature and likely consequences will be reasonable, having regard to the purposes for which they are carried out; and
(c) that there are satisfactory arrangements in force under section 2(2)(a) or 4(2)(a) above with respect to the disclosure of information obtained by virtue of this section and that any information obtained by virtue of anything done in reliance on the authorisation will be subject to those arrangements.
(4) Without prejudice to the generality of the power of the Secretary of State to give an authorisation under this section, such an authorisation-
(a) may relate to a particular act or acts, to acts of a description specified in the authorisation or to acts undertaken in the course of an operation so specified;
(b) may be limited to a particular person or persons of a description so specified; and
(c) may be subject to conditions so specified.
(5) An authorisation shall not be given under this section except-
(a) under the hand of the Secretary of State; or
(b) in an urgent case where the Secretary of State has expressly authorised it to be given and a statement of that fact is endorsed on it, under the hand of a senior official.
(6) An authorisation shall, unless renewed under subsection (7) below, cease to have effect-
(a) if the authorisation was given under the hand of the Secretary of State, at the end of the period of six months beginning with the day on which it was given;
(b) in any other case, at the end of the period ending with the second working day following the day on which it was given.
(7) If at any time before the day on which an authorisation would cease to have effect the Secretary of State considers it necessary for the authorisation to continue to have effect for the purpose for which it was given, he may by an instrument under his hand renew it for a period of six months beginning with that day.
(8) The Secretary of State shall cancel an authorisation if he is satisfied that any act authorised by it is no longer necessary.
(9) For the purposes of this section the reference in subsection (1) to an act done outside the British Islands includes a reference to any act which-
(a) is done in the British Islands; but
(b) is or is intended to be done in relation to apparatus that is believed to be outside the British Islands, or in relation to anything appearing to originate from such apparatus;
and in this subsection "apparatus" has the same meaning as in [RIPA].
(a) a person is authorised by virtue of this section to do an act outside the British Islands in relation to property,
(b) the act is one which, in relation to property within the British Islands, is capable of being authorised by a warrant under section 5,
(c) a person authorised by virtue of this section to do that act outside the British Islands, does the act in relation to that property while it is within the British Islands, and
(d) the act is done in circumstances falling within subsection (11) or (12),
this section shall have effect as if the act were done outside the British Islands in relation to that property.
(11) An act is done in circumstances falling within this subsection if it is done in relation to the property at a time when it is believed to be outside the British Islands.
(12) An act is done in circumstances falling within this subsection if it-
(a) is done in relation to property which was mistakenly believed to be outside the British Islands either when the authorisation under this section was given or at a subsequent time or which has been brought within the British Islands since the giving of the authorisation; but
(b) is done before the end of the fifth working day after the day on which the presence of the property in the British Islands first becomes known.
(13) In subsection (12) the reference to the day on which the presence of the property in the British Islands first becomes known is a reference to the day on which it first appears to a member of the Intelligence Service or of GCHQ, after the relevant time-
(a) that the belief that the property was outside the British Islands was mistaken; or
(b) that the property is within those Islands.
(14) In subsection (13) 'the relevant time' means, as the case may be –
(a) the time of the mistaken belief mentioned in subsection (12)(a); or
(b) the time at which the property was, or was most recently, brought within the British Islands.
Sir Mark Waller's report
"Thematic Property Warrants
I have expressed concerns about the use of what might be termed "thematic" property warrants issued under section 5 of ISA. ISA section 7 makes specific reference to thematic authorisations (what are called class authorisation) because it refers "to a particular act" or to "acts" undertaken in the course of an operation. However, section 5 is narrower, referring to "property so specified".
During 2014 I have discussed with all the agencies and the warrantry units the use of section 5 in a way which seemed to me arguably too broad or "thematic". I have expressed my view that:
• section 5 does not expressly allow for a class of authorisation; and
• the words "property so specified" might be narrowly construed, requiring the Secretary of State to consider a particular operation against a particular piece of property as opposed to property more generally described by reference for example to a described set of individuals.
The agencies and the warrantry units argue that ISA refers to action and properties which "are specified " which they interpret to mean "described by specification". Under this interpretation they consider that the property does not necessarily need to be specifically identified in advance as long as what is stated in the warrant can properly be said to include the property that is the subject of the subsequent interference. They argue that sometimes time constraints are such that if they are to act to protect national security they need a warrant which "specifies" property by reference to a described set of persons, only being able to identify with precision an individual at a later moment.
I accept the agencies' interpretation is very arguable. I also see in practical terms the national security requirement.
The critical thing however is that the submission and the warrant must be set out in a way which allows the Secretary of State to make the decision on necessity and proportionality.
Thus, I have made it clear:
- A Secretary of State can only sign the warrant if they are able property to assess whether it is necessary and proportionate to authorise the activity.
- The necessity and proportionality consideration must not be delegated
- Property warrants under the present legislation should be as narrow as possible; and
- Exceptional circumstances where time constraints would put national security at risk will be more likely to justify "thematic" warrants.
This has led to one of the agencies withdrawing a thematic property warrant in order to better define the specified property. We remain in discussion to find a way to do so but I am anxious to ensure that they are not missing intelligence opportunities which might endanger national security.
I made five recommendations at each of the intelligence agencies and warrantry units in relation to what might be termed thematic property warrants.
(1) for any warrants which might be considered to be thematic to be highlighted in the list provided for my selection;
(2) the terms of a warrant and the submission must always be such as to enable the Secretary of State to assess the necessity and proportionality;
(3) the assessment to proportionality and necessity should not be delegated;
(4) property warrants should be as narrow as possible but circumstances where time constraints and national security dictate may allow a more broadly drawn "thematic" warrant; and
(5) as the agencies and the Secretary of State have made clear to me is the case, thematic or broadly drawn warrants should not be asked for simply for administrative convenience."
The Investigatory Powers Act 2016
"(1) A targeted equipment interference warrant may relate to any one or more of the following matters—
(a) equipment belonging to, used by or in the possession of a particular person or organisation;
(b) equipment belonging to, used by or in the possession of a group of persons who share a common purpose or who carry on, or may carry on, a particular activity;
(c) equipment belonging to, used by or in the possession of more than one person or organisation, where the interference is for the purpose of a single investigation or operation;
(d) equipment in a particular location;
(e) equipment in more than one location, where the interference is for the purpose of a single investigation or operation;
(f) equipment which is being, or may be, used for the purposes of a particular activity or activities of a particular description;
(g) equipment which is being, or may be, used to test, maintain or develop capabilities relating to interference with equipment for the purpose of obtaining communications, equipment data or other information;
(h) equipment which is being, or may be, used for the training of persons who carry out, or are likely to carry out, such interference with equipment."
a) covert entry and search of premises or goods
b) interference with goods
c) interference with intellectual property rights; and
d) computer hacking where the aim is not to acquire data, but to destroy or otherwise manipulate the functioning of electronic systems.
The Tribunal's judgment on issue 4
"37. Eighteenth century abhorrence of general warrants issued without express statutory sanction is not in our judgment a useful or permissible aid to construction of an express statutory power given to a Service, one of whose principal functions is to further the interests of UK national security, with particular reference to defence and foreign policy. The words should be given their natural meaning in the context in which they are set.
38. The issue as to whether the specification is sufficient in any particular case will be dependent on the particular facts of that case. The courts frequently have to determine such questions for example in respect of a warrant under the Police Act 1997 s.93, when the issues, by reference to the particular facts would be fully aired in open. That is not possible in relation to a s.5 warrant, but it may still be subject to scrutiny by the Intelligence Services Commissioner, by the ISC and, if and when a complaint is made to this Tribunal, then by this Tribunal. But the test is not in our judgment different -Are the actions and the property sufficiently identified? The Home Secretary's own words as recorded in paragraph 42 of the ISC Report, set out in paragraph 32 above, relating to a s.8(1) warrant, are applicable here also. It is not in our judgment necessary for a Secretary of State to exercise judgment in relation to a warrant for it to be limited to a named or identified individual or list of individuals. The property should be so defined, whether by reference to persons or a group or category of persons, that the extent of the reasonably foreseeable interference caused by the authorisation of CNE in relation to the actions and property specified in the warrant can be addressed.
39. As discussed in the course of argument, the word under consideration is simply specified, and this may be contrasted with other statutes such as those relating to letters of request, where the requirement of the Evidence (Proceedings in Other Jurisdictions) Act 1975 is for "particular documents specified''. There is no requirement here for specification of particular property, but simply for specification of the property, which in our judgment is a word not of limitation but of description, and the issue becomes one simply of sufficiency of identification.
40. The statute does not fall to be interpreted by reference to the underlying Code, in particular one which, like the E I Code, has been in draft waiting to be approved by Parliament. But what is of course important is what is put in the applications to the Secretary of State, so that he can exercise his discretion lawfully and reasonably. Both in the Property Code, in place since 2002, (at paragraphs 7.18-7.19) and now in the EI Code (at paragraph 4.6), there is a lengthy list of what is required to be included in an application to the Secretary of State for the issue or renewal of a s.5 warrant. Apart from a description of the proposed interference and the measures to be taken to minimise intrusion, at the head of the list in both Codes is a requirement to specify "the identity or identities, where known, of those who possess [or use] the [equipment] that is to be subject to the interference" and "sufficient information to identify the [equipment] which will be affected by the interference" (the square bracketed parts are the changes from the Property Code to the draft EI Code).
41. We are entirely satisfied that Mr Jaffey's submissions have confused the property to be specified with the person or persons whose ownership or use of the equipment may assist in its identification. We do not accept his submission (Day 2/12) that the Secretary of State has to consider, by reference to each individual person who might use or own such equipment, whether CNE would be justified in each individual case. Questions of necessity and proportionality to be applied by the Secretary of State must relate to the foreseeable effect of the grant of such a warrant, and one of the matters to be considered is the effect and extent of the warrant in the light of the specification of the property in that warrant.
42. As originally enacted, s.5(2) authorised the Secretary of State to issue a warrant "authorising the taking ... of such action as is specified in the warrant in respect of any property so specified or in respect of wireless telegraphy so specified if the Secretary of State: (a) thinks it necessary for the action to be taken on the ground that it is likely to be of substantial value in assisting ... [our underlining] (iii) GCHQ in carrying out any function which falls within Section 3(l)(a) and (b) is satisfied that what the action seeks to achieve cannot reasonably be achieved by other means and (c) is satisfied that satisfactory arrangements are in force under . . . Section 4(2)(a)above with respect to the disclosure of information obtained ... and that any information obtained under the warrant will be subject to those arrangements".
43. "Specified" must mean the same in relation to each action, property and wireless telegraphy. "Wireless telegraphy" as defined by s.1l(e) of ISA meant "the emitting or receiving over paths which are not provided by any material substance constructed or arranged for that purpose, of electro magnetic energy or frequency not exceeding 3 million megacycles per second ... ". (s.19(1) Wireless Telegraphy Act 1949).
44. Given the width of meaning contained in the words "action" and "wireless telegraphy" and, at least potentially, in the word "property", specified cannot have meant anything more restrictive than 'adequately described'. The key purpose of specifying is to permit a person executing the warrant to know when it is executed that the action which he is to take and the property or wireless telegraphy with which he is to interfere is within the scope of the warrant.
45. It therefore follows that a warrant issued under s.5 as originally enacted was not required: i) to identify one or more individual items of property by reference to their name, location or owner or ii) to identify property in existence at the date on which the warrant was issued. Warrants could therefore, for example, lawfully be issued to permit GCHQ to interfere with computers used by members, wherever located, of a group whose activities could pose a threat to UK national security, or be used to further the policies or activities of a terrorist organisation or grouping, during the life of a warrant, even though the members or individuals so described and/or of the users of the computers were not and could not be identified when the warrant was issued.
46. The amendment of s.7 in 2001 to add GCHQ cannot alter the meaning of s.5, which has, in all respects relevant to this Issue, remained unchanged.
47. In our judgment what is required is for the warrant to be as specific as possible in relation to the property to be covered by the warrant, both to enable the Secretary of State to be satisfied as to legality, necessity and proportionality and to assist those executing the warrant, so that the property to be covered is objectively ascertainable."
The Claimants' submissions
The Interested Parties' submissions
The application to amend to allege breach of Article 8 before February 2015
Discussion of Issue 4
The relevant principles of statutory interpretation
The aversion of the common law to general warrants
"A general warrant to apprehend all persons suspected, without naming or particularly describing any person in special, is illegal and void for its uncertainty; for it is the duty of the magistrate, and ought not to be left to the officer, to judge of the ground of suspicion."
"It is not fit, that the receiving or judging of the information should be left to the discretion of the officer. The magistrate ought to judge; and should give certain discretions to the officer…Hale and all others hold such an uncertain warrant void".
Lord Mansfield was here saying that the officer who executed a warrant could not lawfully exercise a discretion as to who was to be apprehended: a general warrant which did not specify its target was void.
"The defendants claimed a right, under precedents, to force persons houses, break open escrutores, seize their papers, &c. upon a general warrant, where no inventory is made of the things thus taken away, and where no offenders names are specified in the warrant, and therefore a discretionary power given to messengers to search wherever their suspicions may chance to fall. If such a power is truly invested in a Secretary of State, and he can delegate this power, it certainly may affect the person and property of every man in this kingdom, and is totally subversive of the liberty of the subject."
"The obligations that may be imposed by a control order made against an individual are any obligations that the Secretary of State or (as the case may be) the court considers necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity."
Section 1(4), beginning with the words "these obligations may include, in particular" [emphasis added], went on to set out in 16 subparagraphs what obligations might be imposed, such as:
"(j) a requirement on him to give access to specified persons to his place of residence or to other premises to which he has power to grant access;"
(k) a requirement on him to allow specified persons to search that place or any such premises for the purpose of ascertaining whether obligations imposed by or under the order have been, are being or are about to be contravened;
(l) a requirement on him to allow specified persons, either for that purpose or for the purpose of securing that the order is complied with, to remove anything found in that place or on any such premises and to subject it to tests or to retain it for a period not exceeding the period for which the order remains in force;….."
The Court of Appeal held that these provisions did not permit the inclusion in a control order of a requirement that the controlee submit to a personal search. Dyson LJ said at para 44 that "general statutory words will not suffice to permit an invasion of fundamental rights unless it is clear from the whole statutory context that Parliament intended to achieve that result."
Application of these principles to section 5(2) of the 1994 Act
The contrast with section 7(4)
The contrast with the 2016 Act
Conclusions on Issue 4
UPON the Claimant's application for judicial review of the decision of the Defendant ("the Tribunal") dated 12 February 2016 ("the Decision")
AND UPON hearing Ben Jaffey QC and Tom Cleaver for the Claimant and Sir James Eadie QC and Richard O'Brien for the Interested Parties (the Tribunal not appearing by counsel)
IT IS ORDERED THAT:
1. The Tribunal's preliminary ruling on 'Issue 4' (as defined in the Decision) is quashed. 2. It is declared that a warrant issued under section 5 of the Intelligence Services Act 1994 must, in order to be lawful, be sufficiently specific for the property concerned to be objectively ascertainable on the face of the warrant, in the sense set out in paragraphs 57 to 64 of the judgment of the Divisional Court handed down on 8 January 2021 ("the Judgment"). 3. The Claimant's application for permission to amend the claim to seek judicial review of the Defendant's conclusion on Issue 9 (as defined in the Decision) is dismissed. 4. The Tribunal's determination under section 68(4) of the Regulation of Investigatory Powers Act 2000 is quashed and is remitted to the Tribunal for reconsideration in light of the Judgment. 5. The parties shall file and exchange written submissions as to the costs of the proceedings (except in so far as already ordered by the Supreme Court in its order of 10 June 2019) by 4pm on 11 January 2021. 6. Time for the Claimant or the Interested Parties to make any application to the Divisional Court for permission to appeal to the Court of Appeal be extended from 4pm on 11 January 2021 to 4pm on 1 February 2021. 7. The Claimant and the Interested Parties shall have liberty to apply for any further extension of time to make any application referred to in paragraph 6. 8. Time for any application by the Claimant or the Interested Parties to the Court of Appeal for permission to appeal be extended to 21 days from the date of any decision by the Divisional Court on any application referred to in paragraph 6.