CJEU gives judgment on Data Retention and Investigatory Powers Act 2014

Wed, 21 Dec 2016

The Court of Justice of the EU has today given its ruling that the Data Retention and Investigatory Powers Act 2014 which gives the Secretary of State for the Home Department powers to issue a data retention notice to telecommunications operators to retain personal data of subscribers and registered users without overview by a judge as being incompatible with EU law. 

The Data Retention and Investigatory Powers Act was branded the "snoopers' charter" by critics, which requires communications companies (telephone companies) to retain data for 12 months following the giving of a notice by the Secretary of State irrespective of whether the data subject was suspected of committing any crime.  The UK Government introduced this legislation to collect data in order to combat crime.

The CJEU ruled that national legislation which allows for indiscriminate retention of all traffic and location data is not permissible. 

Furthermore, the Court also ruled that national legislation which allows state authorities to access this data in order to combat crime (and not only serious crime) without prior review by a court or an independent administrative authority and where there is no requirement that such data should be retained in the EU is also unlawful.

Ramby de Mello was instructed as junior counsel on behalf of Mr Brice and Mr Lewis to represent them before the Court of Justice. He was instructed by Stuart Luke of Bhatia Best solicitors.  Mr Brice and Mr Lewis complained that their data may have been retained by the service providers without their knowledge and used for unlawful purposes.  Their case was heard alongside Mr David Davis and Mr Tom Watson who were represented by Liberty.

The judgment will have far reaching effect on UK legislation post-Brexit as the CJEU judgment will also have an impact on the case law of the Human Rights Court in Strasbourg.  Post-Brexit the ECHR court will be very much influenced by the judgment of the CJEU on this topic of electronic communications and surveillance.  The judgment will have an impact on the Investigatory Powers Act 2016.

The Court of Appeal will now hear arguments on the effect of this judgment.  In the mean time the DRIPA 2014 is subject to a sunset clause which means that this piece of legislation will technically come to an end at the end of December 2016 but the effect of the CJEU judgment will be felt beyond this period and will have an impact on domestic legislation post-Brexit.

Ramby de Mello is part of No5 Public Law Group.

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