The claimants sought judicial review of the data retention powers in section 1 of the Data Retention and Investigatory Powers Act 2014 on the ground that section 1 and the regulations made under the Act were contrary to the requirements of article 15 of Parliament and Council Directive 2002/58/EC. as amended, and of the Charter of Fundamental Rights of the European Union, because they did not restrict access to data according to the objective of fighting serious crime, access was not subject to prior review and there was no requirement that data should be retained within the European Union. The Divisional Court of the Queen’s Bench Division held that section 1 of the 2014 Act was incompatible with European law in certain specific respects, and ordered that it be disapplied and suspended until after 31 March 2016 specifically (1) in so far as access to and use of communications data retained pursuant to a retention notice was permitted for purposes other than the prevention and detection of serious offences or the conduct of criminal prosecutions relating to such offences; and (2) in so far as access to the data was not made dependent on a prior review by a court or an independent administrative body the decision of which limited access to the use of the data to what was strictly necessary for the purpose of attaining the objective pursued. On the defendant’s appeal the Court of Appeal made a reference to the Court of Justice of the European Union for clarification of its requirements in relation to data retention. The Court of Justice ruled that .article 15(1) of the Directive, read in the light of articles 7, 8, 11 and 52(1) of the Charter, precluded national legislation governing the protection and security of traffic and location data and, in particular, access of the national authorities to the retained data, where (i) the objective pursued by that access, in the context of fighting crime, was not restricted solely to fighting serious crime, (ii) access was not subject to prior review by a court or an independent administrative authority, and (iii) there was no requirement that the data concerned should be retained within the European Union. The appeal was restored for hearing in the light of the ruling of the Court of Justice.
On the appeal—
Held, appeal dismissed. There would be a declaration that section 1 of the Data Retention and Investigatory Powers Act 2014 was inconsistent with European Union law to the extent that, for the purposes of the prevention, investigation, detection and prosecution of criminal offences, it permitted access to retained data where (a) the object pursued by that access was not restricted solely to fighting serious crime; or (b) access was not subject to prior review by a court or an independent administrative authority. In view of developments since the ruling of the Court of Justice, including repeal of section 1 of the 2014 Act and its replacement by Part 4 of the Investigatory Powers Act 2016, which was itself the subject of a claim for judicial review, and a further reference made by the Investigatory Powers Tribunal to the Court of Justice for clarification of the court’s judgment in the present case on the requirements on data retention in the national security context, it was appropriate to limit the application of the court’s judgment to cases concerned with fighting crime (paras 6, 12–13, 27).
James Eadie QC, Gerry Facenna QC and Michael Armitage (instructed by Treasury Solicitor) for the Home Secretary.
Ben Jaffey QC and Iain Steele (instructed by Liberty) for the first claimant.
Richard Drabble QC, Ramby de Mello and Azeem Suterwalla (instructed by Bhatia Best Solicitors, Nottingham) for the second and third claimants.
Jessica Simor QC and Ravi Mehta (instructed by Deighton Pierce Glynn) for the first and second interveners.