Connor Palmer & Ors v National Crime Agency
[2024] EWCA Civ 1095
National Council for Civil Liberties, R (on the application of) v Secretary of State for the Home Department & Anor
4 August 2023
[2023] EWCA Civ 926
Court of Appeal
A court case challenged new UK spy laws. The court mostly said the laws were okay, but needs more information on one part and found a problem with keeping some information secret.
Key Facts
- •The National Council for Civil Liberties (NCCL) appealed a Divisional Court decision upholding the compatibility of parts of the Investigatory Powers Act 2016 (IPA) with Articles 8 and 10 of the European Convention on Human Rights (ECHR) and retained EU law.
- •The appeal focused on the IPA's "bulk powers", which are not directed at particular individuals, and equipment interference warrants, which can target groups or organizations.
- •The case involved a six-year period of litigation, resulting in complexities related to evidence and arguments.
- •The appeal challenged various aspects of the IPA, including safeguards for journalistic material, protection against abuse, overseas data sharing, and the retention of bulk personal datasets.
- •The Court of Appeal considered the Grand Chamber's decision in *Big Brother Watch v United Kingdom*, which addressed similar issues under a predecessor statute.
- •The Court considered the impact of the UK's withdrawal from the European Union on the applicability of retained EU law.
Legal Principles
Interference with Articles 8 and 10 rights must be 'in accordance with the law', pursue legitimate aims, and be necessary in a democratic society.
ECHR Articles 8 and 10
A bulk interception regime must contain sufficient guarantees against abuse and be subject to 'end-to-end safeguards'.
*Big Brother Watch v United Kingdom*
Article 15 of the e-Privacy Directive permits Member States to adopt measures to safeguard national security, but these must be necessary, appropriate, and proportionate.
Directive 2002/38/EC
General and indiscriminate retention of data is not permitted under EU law.
*Tele2 Sverige AB v Post-och telestyrelsen* and *Watson*
Outcomes
Appeal dismissed, except for one aspect.
The Court found that the challenged provisions of the IPA, with one exception, were compatible with the ECHR and did not violate retained EU law. The Court considered the totality of safeguards in the Act and related Codes of Practice.
Remitted to Divisional Court: compatibility of Part 6, Chapter 3 with Article 10 regarding journalist source protection.
The Court lacked sufficient evidence to assess this specific issue.
Declaration of incompatibility: safeguards regarding overseas transfer of data from bulk personal datasets.
The safeguards were not publicly accessible.
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