One year after the Data Retention and Investigatory Powers Act 2014 (“DRIPA”) received royal assent on 17 July 2014, the English High Court issued a landmark judgment in David & Ors v Secretary of State for the Home Department [2015] EWHC 2092 (Admin) declaring DRIPA to be unlawful.

This case concerned an application for judicial review of the data retention powers under s.1 of DRIPA, under which the Secretary of State may, by notice, require a public telecommunications operator to retain relevant communications for a period that must not exceed 12 months if he/she considers that this is necessary and proportionate for one or more of the purposes for which communications may be obtained under the Regulation of Investigatory Powers Act 2000.

The question before the court was whether s.1 of DRIPA was contrary to the right for private and family life, home and communications and the right to the protection of personal data concerning him/her under Articles 7 and 8 of the Charter of Fundamental Rights of the European Union.

Following EU legal authorities where an existing EU Directive on data retention was held to be interfering with individual privacy rights, the High Court declared s.1 of DRIPA to be unlawful and to be disapplied on the following grounds:

  • “it does not lay down clear and precise rules providing for access to and use of communications data retained pursuant to a retention notice to be strictly restricted to the purpose of preventing and detecting precisely defined serious offences or of conducting criminal prosecutions relating to such offences; and
  • access to the data is not made dependent on a prior review by a court or an independent administrative body whose decision limits access to and use of the data to what is strictly necessary for the purpose of attaining the objective pursued.”

The order to disapply s.1 will be suspended until 31 March 2016 to allow the UK government to pass new legislation, after which s.1 of DRIPA, to the extent that it is inconsistent with EU law, will no longer have effect.

The UK government has announced that it will appeal against this decision.  According to the Home Office Minister of Security, John Hayes, access to retained communications data could “save lives” and the High Court judgment “poses a risk here of giving succour to the paranoid liberal bourgeoisie whose peculiar fears are placed ahead of the interests of the people”.