Secretary of State for the Home Department v Tom Watson MP and Others  EWCA Civ 70
On 30 January 2018, the UK Court of Appeal (the Court) upheld a challenge to the Data Retention and Investigatory Powers Act, 2014 (DRIPA), on the basis that section 1 of DRIPA was inconsistent with the law of the European Union (EU) with regard to the retention of personal data.
The crux of the respondents’ argument was that DRIPA failed to contain adequate safeguards against communications data leaving the EU. In November 2015, the Court had referred certain preliminary issues in this matter to the Court of Justice of the European Union (CJEU) for clarification on the CJEU’s decision in Digital Rights Ireland Limited v Minister for Communications, Marine and Natural Resources and Others. Between the time of that referral and the hearing of the present matter, sections 1 and 2 of DRIPA had since been repealed, and further proceedings had been launched challenging the new regulatory regime. However, the Court considered it nevertheless worthwhile to give judgment on the matter that it was already seized with, albeit on narrow grounds. In this regard, the Court granted the following declarator:
“Section 1 of [DRIPA] was inconsistent with EU 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 the object pursued by that access was not restricted solely to fighting serious crime; or
- where access was not subject to prior review by a court or an independent administrative authority.”
The full judgment is available here.
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