Tue, 16 Jun 2015
On 4 and 5 June 2015, Ramby de Mello and James Dixon, assisted by James Fraczyk, represented two claimants in a High Court judicial review (led by Richard Drabble QC), before Lord Justice Bean and Mr Justice Collins, challenging the legality of various provisions in the Data Retention and Investigatory Powers Act 2014 (‘DRIPA’). The two claims were joined with those of Tom Watson MP and David Davis MP.
The central issue in the case is whether the statutory provisions on retention of, and access to, data are compatible with European Union law and the Human Rights Act 1998.
The primary battle ground concerned the Court of Justice’s ruling in Joined Cases C-92/09 and C-93/09 Digital Rights Ireland (of 8 April 2014) which invalidated the Data Retention Directive (i.e. Directive 2006/24/EC).
DRIPA was challenged on, inter alia, four key grounds.
Firstly, there must be some relation between the retention of data and its potential utility in furthering the purpose for which it is retained (e.g. in being used to fight terrorism and serious crime).
Secondly, access to the data must be justified by the need to prevent, detect and prosecute serious crime, as objectively defined (as opposed to merely “preventing or detecting crime or disorder”).
Thirdly, access to the data is only lawful if authorised beforehand by an independent body (at present the executive, in effect, authorises its own access to data via ministerial approval).
Fourthly, and pursuant to paragraph 68 of Digital Rights Ireland, the retained data must be kept within the EU.
The judgment is eagerly anticipated by both sides, and will be handed down in the context of a report recently issued by David Anderson QC on the UK’s current surveillance powers. The report has suggested an overhaul and consolidation of the current statutory scheme via a new enactment.