Data retention powers in DRIPA 2014 contrary to EU law


Re: Davis & Ors v SSHD [2015] EWHC 2092 (Admin)

The claimants challenged the lawfulness of the data retention powers under the Data Retention and Investigatory Powers Act 2014 (DRIPA), s 1. The Court was asked to decide whether the ruling of the CJEU in Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources & Ors and another case (C-293/12 &C-594/12) that the Data Protection Directive(Directive95/46/EC) violated Charter of Fundamental Rights, arts 7, 8 and 52(1) meant that the DRIPA powers were also incompatible with EU law.

The Court concluded that the CJEU had held that a general retention regime would be invalid unless it was accompanied by an access regime at the national level which provided minimum safeguards against abuse. Legislation had to lay down clear and precise rules which governed the scope and application of measures. DRIPA, s 1 failed to establish such rules with regards to communication data retention and did not prevent the possibility that powers would be used for purposes other than preventing, detecting and prosecuting serious crime.

The Court ordered that s 1 be disapplied to the extent that it permits access to retained data in a manner inconsistent with EU law. However it suspended its order until 31 Mar 2016 to allow Parliament to rectify the deficiencies. All sides had acknowledged the immediate disapplication ofthe regime was undesirable, as it could hinder the investigation of serious crimes.

On a separate note, the Court refused to make a preliminary reference to the CJEU, as requested by the defendant, for a number of reasons. The Court held that a reference was not appropriate given the late stage at which the request was made, and the fact that DRIPA’s sunset clause would have expired by the time the CJEU considered the matter.

Jessica Simor QC was involved in this case.