Secretary of State for the Home Department v Watson MP & Ors

For access to retained communications data for the prevention, investigation, detection or prosecution of crime, Data Retention and Investigatory Powers Act 2014 must restrict access to the objective of fighting serious crime and require prior review by a court or independent administrative authority. A regime that permits access without either safeguard is inconsistent with EU law.

Declaratory relief should be confined to issues properly raised and sufficiently clear. The court should not determine the application of those requirements to national security, or unresolved issues concerning EU retention, notification and general retention, where related questions remain before other courts or the CJEU.

The Secretary of State appealed from declaratory relief granted by the Divisional Court concerning section 1 of the Data Retention and Investigatory Powers Act 2014 (“DRIPA”). In an earlier judgment, this court had referred questions concerning access to retained communications data to the CJEU: [2015] EWCA Civ 1185.

The CJEU’s Grand Chamber ruling, delivered in joined proceedings including this appeal, identified requirements concerning access to retained data. The Court of Appeal had to apply that ruling to DRIPA, despite its repeal, and decide the appropriate form of declaration. The respondents also sought wider declarations concerning retention within the European Union, post-access notification, and limits on general data retention.

1. Declaration granted. Section 1 of the Data Retention and Investigatory Powers Act 2014 was inconsistent with EU law, in the criminal-offence context, insofar as it permitted access to retained data where the objective was not restricted solely to fighting serious crime or where access lacked prior review by a court or independent administrative authority.

2. The court accepted that those two safeguards were, at the least, required by the CJEU ruling. It was therefore appropriate to replace the broader Divisional Court declaration with a declaration precisely confined to them.

3. The declaration was expressly limited to the prevention, investigation, detection and prosecution of criminal offences. Whether the CJEU requirements also governed measures taken for national security was the subject of a pending reference by the Investigatory Powers Tribunal. It would be inappropriate to pre-empt that reference.

4. The court declined a further declaration requiring retained data to remain in the European Union. The scope and absoluteness of that requirement remained uncertain and was also raised in the pending Tribunal reference. It likewise declined to declare that DRIPA was unlawful for failing to provide for post-access notification. That issue had not properly arisen in the national proceedings and was before the CJEU in the pending reference.

5. The court also declined to declare DRIPA unlawful for not restricting retained data to an objectively identified public linked to serious crime. The point had not been pleaded or developed with evidence concerning DRIPA, was closely connected to the Swedish legislation considered by the CJEU, and was live in separate proceedings concerning Part 4 of the Investigatory Powers Act 2016.

6. Although circulation of a draft judgment ordinarily permits no further submissions, under R (Edwards) v Environment Agency (Note) [2008] 1 WLR 1587, the court exceptionally received responsive submissions because of procedural confusion and the public importance of the issue.

• Court of Appeal (Civil Division): In this judgment, [2018] EWCA Civ 70, the court granted a narrowed declaration that section 1 of the Data Retention and Investigatory Powers Act 2014 was inconsistent with EU law in the criminal-offence context in two stated respects.
• Court of Justice of the European Union, Grand Chamber: Following this court’s preliminary reference, the joined ruling ECLI:EU:C:2016:970 addressed retention and access to traffic and location data.
• Court of Appeal (Civil Division): The court referred preliminary questions to the CJEU in [2015] EWCA Civ 1185.
• High Court, Queen’s Bench Division, Divisional Court: Lord Justice Bean and Mr Justice Collins granted declaratory relief. No citation for that decision is stated in the judgment.