Davis & Ors, R (on the application of) v Secretary of State for the Home Department & Ors

A general regime requiring communications data to be retained is not, by itself, incompatible with EU law. It must, however, be accompanied by clear and precise access safeguards. Access and use must be strictly limited to preventing and detecting precisely defined serious offences or conducting related prosecutions. Access must also be subject to prior review by a court or independent administrative body, limiting access and use to what is strictly necessary. Prior independent approval is required for access, not retention. A domestic court may apply the binding requirements identified by the CJEU in Digital Rights Ireland to materially identical domestic legislation.

Three conjoined judicial review claims challenged section 1 of the Data Retention and Investigatory Powers Act 2014 and regulations made under it. The claimants included Members of Parliament, a solicitor and another individual, who raised concerns about the breadth of retention and access powers, including communications involving lawyers and constituents. The principal issue was whether the statutory scheme complied with EU law, particularly Articles 7 and 8 of the Charter as interpreted in Digital Rights Ireland. The court also considered whether a reference to the CJEU was required and what remedy should follow.

1. The applications for judicial review succeeded. The court held that a general retention regime may serve an objective of general interest, but its compatibility with Articles 7 and 8 of the Charter depends on adequate safeguards governing access and use.

2. The ratio of Digital Rights Ireland was that legislation establishing a general retention regime infringes Charter rights unless accompanied by a national access regime providing adequate safeguards. The judgment treated the CJEU’s requirements concerning access as binding, notwithstanding that the CJEU had formally ruled on the validity of the Directive rather than on domestic legislation.

3. Access to and use of retained data must be strictly restricted to preventing and detecting precisely defined serious offences or conducting criminal prosecutions relating to them. The relevant offences must be precisely defined by national legislation and must properly be regarded as serious. Access need not be confined to data belonging to persons suspected of serious crime, since data concerning innocent persons may assist the investigation of serious offences.

4. Access must be dependent on prior review by a court or independent administrative body. The reviewing body must limit access and use to what is strictly necessary and must act following a reasoned request. The existing requirement for consideration by a senior person independent of the investigation did not satisfy that EU-law requirement. The need for prior approval concerned access, not retention.

5. The court rejected reliance on Strasbourg decisions concerning case-specific interception or access to an identified person’s communications. Those decisions did not materially assist in interpreting the CJEU’s ruling on a potentially massive general retention regime. Communications involving lawyers, Members of Parliament and journalists required special consideration.

6. A reference to the CJEU was refused. The court was not the final domestic court, the CJEU had already given general guidance, the request was made too late, and the statutory sunset clause meant that a ruling was unlikely to arrive before the legislation expired or was replaced.

7. The court declared section 1 inconsistent with EU law in the two respects identified. It ordered disapplication of section 1 to that extent, suspended until after 31 March 2016, with liberty to apply. The defendant’s appeal application was granted subject to costs conditions. There was no order as to costs in the claims brought by Mr Davis and Mr Watson; the defendant was to pay the legally aided claimants’ costs, and the interveners bore their own costs.

First-instance judicial review decision. Permission to appeal was granted to the Secretary of State, subject to costs conditions.