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E+W+S+N.I.

Regulation of Investigatory Powers Act 2000

2000 CHAPTER 23

An Act to make provision for and about the interception of communications, the acquisition and disclosure of data relating to communications, the carrying out of surveillance, the use of covert human intelligence sources and the acquisition of the means by which electronic data protected by encryption or passwords may be decrypted or accessed; to provide for Commissioners and a tribunal with functions and jurisdiction in relation to those matters, to entries on and interferences with property or with wireless telegraphy and to the carrying out of their functions by the Security Service, the Secret Intelligence Service and the Government Communications Headquarters; and for connected purposes.

[28th July 2000]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Part IE+W+S+N.I. Communications

Chapter IE+W+S+N.I. Interception

Unlawful and authorised interceptionE+W+S+N.I.

1 Unlawful interception.E+W+S+N.I.

(1)It shall be an offence for a person intentionally and without lawful authority to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of—

(a)a public postal service; or

(b)a public telecommunication system.

(2)It shall be an offence for a person—

(a)intentionally and without lawful authority, and

(b)otherwise than in circumstances in which his conduct is excluded by subsection (6) from criminal liability under this subsection,

to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of a private telecommunication system.

(3)Any interception of a communication which is carried out at any place in the United Kingdom by, or with the express or implied consent of, a person having the right to control the operation or the use of a private telecommunication system shall be actionable at the suit or instance of the sender or recipient, or intended recipient, of the communication if it is without lawful authority and is either—

(a)an interception of that communication in the course of its transmission by means of that private system; or

(b)an interception of that communication in the course of its transmission, by means of a public telecommunication system, to or from apparatus comprised in that private telecommunication system.

(4)Where the United Kingdom is a party to an international agreement which—

(a)relates to the provision of mutual assistance in connection with, or in the form of, the interception of communications,

(b)requires the issue of a warrant, order or equivalent instrument in cases in which assistance is given, and

(c)is designated for the purposes of this subsection by an order made by the Secretary of State,

it shall be the duty of the Secretary of State to secure that no request for assistance in accordance with the agreement is made on behalf of a person in the United Kingdom to the competent authorities of a country or territory outside the United Kingdom except with lawful authority.

(5)Conduct has lawful authority for the purposes of this section if, and only if—

(a)it is authorised by or under section 3 or 4;

(b)it takes place in accordance with a warrant under section 5 (“an interception warrant”); or

(c)it is in exercise, in relation to any stored communication, of any statutory power that is exercised (apart from this section) for the purpose of obtaining information or of taking possession of any document or other property;

and conduct (whether or not prohibited by this section) which has lawful authority for the purposes of this section by virtue of paragraph (a) or (b) shall also be taken to be lawful for all other purposes.

(6)The circumstances in which a person makes an interception of a communication in the course of its transmission by means of a private telecommunication system are such that his conduct is excluded from criminal liability under subsection (2) if—

(a)he is a person with a right to control the operation or the use of the system; or

(b)he has the express or implied consent of such a person to make the interception.

(7)A person who is guilty of an offence under subsection (1) or (2) shall be liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both;

(b)on summary conviction, to a fine not exceeding the statutory maximum.

(8)No proceedings for any offence which is an offence by virtue of this section shall be instituted—

(a)in England and Wales, except by or with the consent of the Director of Public Prosecutions;

(b)in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.

Annotations:

Commencement Information

I1S. 1 wholly in force; S. 1 not in force at Royal Assent see s. 83(2); S. 1 except for subsection (3) in force at 2.10.2000 and S. 1(3) in force at 24.10.2000 by S.I. 2000/2543, arts. 3, 4

2 Meaning and location of “interception” etc.E+W+S+N.I.

(1)In this Act—

(2)For the purposes of this Act, but subject to the following provisions of this section, a person intercepts a communication in the course of its transmission by means of a telecommunication system if, and only if, he—

(a)so modifies or interferes with the system, or its operation,

(b)so monitors transmissions made by means of the system, or

(c)so monitors transmissions made by wireless telegraphy to or from apparatus comprised in the system,

as to make some or all of the contents of the communication available, while being transmitted, to a person other than the sender or intended recipient of the communication.

(3)References in this Act to the interception of a communication do not include references to the interception of any communication broadcast for general reception.

(4)For the purposes of this Act the interception of a communication takes place in the United Kingdom if, and only if, the modification, interference or monitoring or, in the case of a postal item, the interception is effected by conduct within the United Kingdom and the communication is either—

(a)intercepted in the course of its transmission by means of a public postal service or public telecommunication system; or

(b)intercepted in the course of its transmission by means of a private telecommunication system in a case in which the sender or intended recipient of the communication is in the United Kingdom.

(5)References in this Act to the interception of a communication in the course of its transmission by means of a postal service or telecommunication system do not include references to—

(a)any conduct that takes place in relation only to so much of the communication as consists in any traffic data comprised in or attached to a communication (whether by the sender or otherwise) for the purposes of any postal service or telecommunication system by means of which it is being or may be transmitted; or

(b)any such conduct, in connection with conduct falling within paragraph (a), as gives a person who is neither the sender nor the intended recipient only so much access to a communication as is necessary for the purpose of identifying traffic data so comprised or attached.

(6)For the purposes of this section references to the modification of a telecommunication system include references to the attachment of any apparatus to, or other modification of or interference with—

(a)any part of the system; or

(b)any wireless telegraphy apparatus used for making transmissions to or from apparatus comprised in the system.

(7)For the purposes of this section the times while a communication is being transmitted by means of a telecommunication system shall be taken to include any time when the system by means of which the communication is being, or has been, transmitted is used for storing it in a manner that enables the intended recipient to collect it or otherwise to have access to it.

(8)For the purposes of this section the cases in which any contents of a communication are to be taken to be made available to a person while being transmitted shall include any case in which any of the contents of the communication, while being transmitted, are diverted or recorded so as to be available to a person subsequently.

(9)In this section “traffic data”, in relation to any communication, means—

(a)any data identifying, or purporting to identify, any person, apparatus or location to or from which the communication is or may be transmitted,

(b)any data identifying or selecting, or purporting to identify or select, apparatus through which, or by means of which, the communication is or may be transmitted,

(c)any data comprising signals for the actuation of apparatus used for the purposes of a telecommunication system for effecting (in whole or in part) the transmission of any communication, and

(d)any data identifying the data or other data as data comprised in or attached to a particular communication,

but that expression includes data identifying a computer file or computer program access to which is obtained, or which is run, by means of the communication to the extent only that the file or program is identified by reference to the apparatus in which it is stored.

(10)In this section—

(a)references, in relation to traffic data comprising signals for the actuation of apparatus, to a telecommunication system by means of which a communication is being or may be transmitted include references to any telecommunication system in which that apparatus is comprised; and

(b)references to traffic data being attached to a communication include references to the data and the communication being logically associated with each other;

and in this section “data”, in relation to a postal item, means anything written on the outside of the item.

(11)In this section “postal item” means any letter, postcard or other such thing in writing as may be used by the sender for imparting information to the recipient, or any packet or parcel.

3 Lawful interception without an interception warrant.E+W+S+N.I.

(1)Conduct by any person consisting in the interception of a communication is authorised by this section if the communication is one which, or which that person has reasonable grounds for believing, is both—

(a)a communication sent by a person who has consented to the interception; and

(b)a communication the intended recipient of which has so consented.

(2)Conduct by any person consisting in the interception of a communication is authorised by this section if—

(a)the communication is one sent by, or intended for, a person who has consented to the interception; and

(b)surveillance by means of that interception has been authorised under Part II.

(3)Conduct consisting in the interception of a communication is authorised by this section if—

(a)it is conduct by or on behalf of a person who provides a postal service or a telecommunications service; and

(b)it takes place for purposes connected with the provision or operation of that service or with the enforcement, in relation to that service, of any enactment relating to the use of postal services or telecommunications services.

(4)Conduct by any person consisting in the interception of a communication in the course of its transmission by means of wireless telegraphy is authorised by this section if it takes place—

(a)with the authority of a designated person under [F1section 48 of the Wireless Telegraphy Act 2006 (interception and disclosure of wireless telegraphy messages)]F1 ; and

(b)for purposes connected with anything falling within subsection (5).

(5)Each of the following falls within this subsection—

[F2(a)the grant of wireless telegraphy licences under the Wireless Telegraphy Act 2006;]

F2(b)the prevention or detection of anything which constitutes interference with wireless telegraphy; and

(c)the enforcement of

[F3(i)any provision of Part 2 (other than Chapter 2 and sections 27 to 31) or Part 3 of that Act, or

(ii)any enactment not falling within sub-paragraph (i)]

F3 that relates to such interference.

4 Power to provide for lawful interception.E+W+S+N.I.

(1)Conduct by any person (“the interceptor”) consisting in the interception of a communication in the course of its transmission by means of a telecommunication system is authorised by this section if—

(a)the interception is carried out for the purpose of obtaining information about the communications of a person who, or who the interceptor has reasonable grounds for believing, is in a country or territory outside the United Kingdom;

(b)the interception relates to the use of a telecommunications service provided to persons in that country or territory which is either—

(i)a public telecommunications service; or

(ii)a telecommunications service that would be a public telecommunications service if the persons to whom it is offered or provided were members of the public in a part of the United Kingdom;

(c)the person who provides that service (whether the interceptor or another person) is required by the law of that country or territory to carry out, secure or facilitate the interception in question;

(d)the situation is one in relation to which such further conditions as may be prescribed by regulations made by the Secretary of State are required to be satisfied before conduct may be treated as authorised by virtue of this subsection; and

(e)the conditions so prescribed are satisfied in relation to that situation.

(2)Subject to subsection (3), the Secretary of State may by regulations authorise any such conduct described in the regulations as appears to him to constitute a legitimate practice reasonably required for the purpose, in connection with the carrying on of any business, of monitoring or keeping a record of—

(a)communications by means of which transactions are entered into in the course of that business; or

(b)other communications relating to that business or taking place in the course of its being carried on.

(3)Nothing in any regulations under subsection (2) shall authorise the interception of any communication except in the course of its transmission using apparatus or services provided by or to the person carrying on the business for use wholly or partly in connection with that business.

(4)Conduct taking place in a prison is authorised by this section if it is conduct in exercise of any power conferred by or under any rules made under section 47 of the M1Prison Act 1952, section 39 of the M2Prisons (Scotland) Act 1989 or section 13 of the M3Prison Act (Northern Ireland) 1953 (prison rules).

(5)Conduct taking place in any hospital premises where high security psychiatric services are provided is authorised by this section if it is conduct in pursuance of, and in accordance with, any direction given under [F4section 8 of the National Health Service Act 2006, or section 19 or 23 of the National Health Service (Wales) Act 2006]F4(directions as to the carrying out of their functions by health bodies) to the body providing those services at those premises.

(6)Conduct taking place in a state hospital is authorised by this section if it is conduct in pursuance of, and in accordance with, any direction given to the State Hospitals Board for Scotland under section 2(5) of the M4National Health Service (Scotland) Act 1978 (regulations and directions as to the exercise of their functions by health boards) as applied by Article 5(1) of and the Schedule to The M5State Hospitals Board for Scotland Order 1995 (which applies certain provisions of that Act of 1978 to the State Hospitals Board).

(7)In this section references to a business include references to any activities of a government department, of any public authority or of any person or office holder on whom functions are conferred by or under any enactment.

(8)In this section—

(9)In this section “prison” means—

(a)any prison, young offender institution, young offenders centre or remand centre which is under the general superintendence of, or is provided by, the Secretary of State under the M7Prison Act 1952 or the M8Prison Act (Northern Ireland) 1953, or

(b)any prison, young offenders institution or remand centre which is under the general superintendence of the Scottish Ministers under the M9Prisons (Scotland) Act 1989,

and includes any contracted out prison, within the meaning of Part IV of the M10Criminal Justice Act 1991 or section 106(4) of the M11Criminal Justice and Public Order Act 1994, and any legalised police cells within the meaning of section 14 of the M12Prisons (Scotland) Act 1989.

Annotations:

Amendments (Textual)

F5Words in s. 4(8) substituted (the amendment coming into force immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) in accordance with art. 1(2)(3) of the amending S.I. and see ss. 46, 161(5) of Government of Wales Act 2006 (c. 32)) by The Government of Wales Act 2006 (Consequential Modifications and Transitional Provisions) Order 2007 (S.I. 2007/1388), art. 1(2)(3), Sch. 1 para. 76(2)

Marginal Citations

5 Interception with a warrant.E+W+S+N.I.

(1)Subject to the following provisions of this Chapter, the Secretary of State may issue a warrant authorising or requiring the person to whom it is addressed, by any such conduct as may be described in the warrant, to secure any one or more of the following—

(a)the interception in the course of their transmission by means of a postal service or telecommunication system of the communications described in the warrant;

(b)the making, in accordance with an international mutual assistance agreement, of a request for the provision of such assistance in connection with, or in the form of, an interception of communications as may be so described;

(c)the provision, in accordance with an international mutual assistance agreement, to the competent authorities of a country or territory outside the United Kingdom of any such assistance in connection with, or in the form of, an interception of communications as may be so described;

(d)the disclosure, in such manner as may be so described, of intercepted material obtained by any interception authorised or required by the warrant, and of related communications data.

(2)The Secretary of State shall not issue an interception warrant unless he believes—

(a)that the warrant is necessary on grounds falling within subsection (3); and

(b)that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.

(3)Subject to the following provisions of this section, a warrant is necessary on grounds falling within this subsection if it is necessary—

(a)in the interests of national security;

(b)for the purpose of preventing or detecting serious crime;

(c)for the purpose of safeguarding the economic well-being of the United Kingdom; or

(d)for the purpose, in circumstances appearing to the Secretary of State to be equivalent to those in which he would issue a warrant by virtue of paragraph (b), of giving effect to the provisions of any international mutual assistance agreement.

(4)The matters to be taken into account in considering whether the requirements of subsection (2) are satisfied in the case of any warrant shall include whether the information which it is thought necessary to obtain under the warrant could reasonably be obtained by other means.

(5)A warrant shall not be considered necessary on the ground falling within subsection (3)(c) unless the information which it is thought necessary to obtain is information relating to the acts or intentions of persons outside the British Islands.

(6)The conduct authorised by an interception warrant shall be taken to include—

(a)all such conduct (including the interception of communications not identified by the warrant) as it is necessary to undertake in order to do what is expressly authorised or required by the warrant;

(b)conduct for obtaining related communications data; and

(c)conduct by any person which is conduct in pursuance of a requirement imposed by or on behalf of the person to whom the warrant is addressed to be provided with assistance with giving effect to the warrant.

Interception warrantsE+W+S+N.I.

6 Application for issue of an interception warrant.E+W+S+N.I.

(1)An interception warrant shall not be issued except on an application made by or on behalf of a person specified in subsection (2).

(2)Those persons are—

(a)the Director-General of the Security Service;

(b)the Chief of the Secret Intelligence Service;

(c)the Director of GCHQ;

(d)the Director General of the [F7Serious Organised Crime Agency]F7 ;

[F8(da)the Director General of the Scottish Crime and Drug Enforcement Agency;]

F8(e)the Commissioner of Police of the Metropolis;

(f)the Chief Constable of the Royal Ulster Constabulary;

(g)the chief constable of any police force maintained under or by virtue of section 1 of the M13Police (Scotland) Act 1967;

(h)[F9the Commissioners for Her Majesty's Revenue and Customs]F9;

(i)the Chief of Defence Intelligence;

(j)a person who, for the purposes of any international mutual assistance agreement, is the competent authority of a country or territory outside the United Kingdom.

(3)An application for the issue of an interception warrant shall not be made on behalf of a person specified in [F10paragraph (a), (b), (c), (e), (f), (g), (h), (i) or (j)]F10 subsection (2) except by a person holding office under the Crown.

7 Issue of warrants.E+W+S+N.I.

(1)An interception warrant shall not be issued except—

(a)under the hand of the Secretary of State [F11or, in the case of a warrant issued by the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998), a member of the Scottish Executive]; or

(b)in a case falling within subsection (2) [F12(a) or (b)], under the hand of a senior official.

[F13; or

(c)in a case falling within subsection (2)(aa), under the hand of a member of the staff of the Scottish Administration who is a member of the Senior Civil Service and who is designated by the Scottish Ministers as a person under whose hand a warrant may be issued in such a case.]

(2)Those cases are—

(a)an urgent case in which the Secretary of State has himself expressly authorised the issue of the warrant in that case; and

[F14(aa)an urgent case in which the Scottish Ministers have themselves (by virtue of provision made under section 63 of the Scotland Act 1998) expressly authorised the use of the warrant in that case and a statement of that fact is endorsed on the warrant; and]

(b)a case in which the warrant is for the purposes of a request for assistance made under an international mutual assistance agreement by the competent authorities of a country or territory outside the United Kingdom and either—

(i)it appears that the interception subject is outside the United Kingdom; or

(ii)the interception to which the warrant relates is to take place in relation only to premises outside the United Kingdom.

(3)An interception warrant—

(a)must be addressed to the person falling within section 6(2) by whom, or on whose behalf, the application for the warrant was made; and

(b)in the case of a warrant issued under the hand of a senior official, must contain, according to whatever is applicable—

(i)one of the statements set out in subsection (4); and

(ii)if it contains the statement set out in subsection (4)(b), one of the statements set out in subsection (5).

(4)The statements referred to in subsection (3)(b)(i) are—

(a)a statement that the case is an urgent case in which the Secretary of State has himself expressly authorised the issue of the warrant;

(b)a statement that the warrant is issued for the purposes of a request for assistance made under an international mutual assistance agreement by the competent authorities of a country or territory outside the United Kingdom.

(5)The statements referred to in subsection (3)(b)(ii) are—

(a)a statement that the interception subject appears to be outside the United Kingdom;

(b)a statement that the interception to which the warrant relates is to take place in relation only to premises outside the United Kingdom.

Annotations:

Amendments (Textual)

F11Words in s. 7(1)(a) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 4(a) (with art. 6)

F12Words in s. 7(1)(b) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 4(b) (with art. 6)

F13S. 7(1)(c) and word immediately preceding it inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 4(c) (with art. 6)

8 Contents of warrants.E+W+S+N.I.

(1)An interception warrant must name or describe either—

(a)one person as the interception subject; or

(b)a single set of premises as the premises in relation to which the interception to which the warrant relates is to take place.

(2)The provisions of an interception warrant describing communications the interception of which is authorised or required by the warrant must comprise one or more schedules setting out the addresses, numbers, apparatus or other factors, or combination of factors, that are to be used for identifying the communications that may be or are to be intercepted.

(3)Any factor or combination of factors set out in accordance with subsection (2) must be one that identifies communications which are likely to be or to include—

(a)communications from, or intended for, the person named or described in the warrant in accordance with subsection (1); or

(b)communications originating on, or intended for transmission to, the premises so named or described.

(4)Subsections (1) and (2) shall not apply to an interception warrant if—

(a)the description of communications to which the warrant relates confines the conduct authorised or required by the warrant to conduct falling within subsection (5); and

(b)at the time of the issue of the warrant, a certificate applicable to the warrant has been issued by the Secretary of State certifying—

(i)the descriptions of intercepted material the examination of which he considers necessary; and

(ii)that he considers the examination of material of those descriptions necessary as mentioned in section 5(3)(a), (b) or (c).

(5)Conduct falls within this subsection if it consists in—

(a)the interception of external communications in the course of their transmission by means of a telecommunication system; and

(b)any conduct authorised in relation to any such interception by section 5(6).

(6)A certificate for the purposes of subsection (4) shall not be issued except under the hand of the Secretary of State.

9 Duration, cancellation and renewal of warrants.E+W+S+N.I.

(1)An interception warrant—

(a)shall cease to have effect at the end of the relevant period; but

(b)may be renewed, at any time before the end of that period, by an instrument under the hand of the Secretary of State [F15or, in the case of a warrant issued by the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998), a member of the Scottish Executive] or, in a case falling within section 7(2)(b), under the hand of a senior official.

(2)An interception warrant shall not be renewed under subsection (1) unless the Secretary of State believes that the warrant continues to be necessary on grounds falling within section 5(3).

(3)The Secretary of State shall cancel an interception warrant if he is satisfied that the warrant is no longer necessary on grounds falling within section 5(3).

(4)The Secretary of State shall cancel an interception warrant if, at any time before the end of the relevant period, he is satisfied in a case in which—

(a)the warrant is one which was issued containing the statement set out in section 7(5)(a) or has been renewed by an instrument containing the statement set out in subsection (5)(b)(i) of this section, and

(b)the latest renewal (if any) of the warrant is not a renewal by an instrument under the hand of the Secretary of State,

that the person named or described in the warrant as the interception subject is in the United Kingdom.

(5)An instrument under the hand of a senior official that renews an interception warrant must contain—

(a)a statement that the renewal is for the purposes of a request for assistance made under an international mutual assistance agreement by the competent authorities of a country or territory outside the United Kingdom; and

(b)whichever of the following statements is applicable—

(i)a statement that the interception subject appears to be outside the United Kingdom;

(ii)a statement that the interception to which the warrant relates is to take place in relation only to premises outside the United Kingdom.

(6)In this section “the relevant period”—

(a)in relation to an unrenewed warrant issued in a case falling within section 7(2)(a) under the hand of a senior official, means the period ending with the fifth working day following the day of the warrant’s issue;

[F16(ab)in relation to an unrenewed warrant which is endorsed under the hand of the Secretary of State with a statement that the issue of the warrant is believed to be necessary on grounds falling within section 5(3)(a) or (c), means the period of six months beginning with the day of the warrant's issue;]

F16(b)in relation to a renewed warrant the latest renewal of which was by an instrument endorsed under the hand of the Secretary of State with a statement that the renewal is believed to be necessary on grounds falling within section 5(3)(a) or (c), means the period of six months beginning with the day of the warrant’s renewal; and

(c)in all other cases, means the period of three months beginning with the day of the warrant’s issue or, in the case of a warrant that has been renewed, of its latest renewal.

Annotations:

Amendments (Textual)

F15Words in s. 9(1)(b) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 5 (with art. 6)

Modifications etc. (not altering text)

C8S. 9(1)(b)(3) modified (S.) (14.12.2000) by S.I. 2000/3253, arts. 1(1)(2), 2, Sch. 1 para. 3(1) (with art. 6)

S. 9(1)(b)(3): functions transferred to the Scottish Ministers (S.) (15.12.2000) by virtue of S.I. 2000/3253,, arts. 1(1)(3), 3, Sch. 2 (with art. 6)

10 Modification of warrants and certificates.E+W+S+N.I.

(1)The Secretary of State may at any time—

(a)modify the provisions of an interception warrant; or

(b)modify a section 8(4) certificate so as to include in the certified material any material the examination of which he considers to be necessary as mentioned in section 5(3)(a), (b) or (c).

(2)If at any time the Secretary of State considers that any factor set out in a schedule to an interception warrant is no longer relevant for identifying communications which, in the case of that warrant, are likely to be or to include communications falling within section 8(3)(a) or (b), it shall be his duty to modify the warrant by the deletion of that factor.

(3)If at any time the Secretary of State considers that the material certified by a section 8(4) certificate includes any material the examination of which is no longer necessary as mentioned in any of paragraphs (a) to (c) of section 5(3), he shall modify the certificate so as to exclude that material from the certified material.

(4)Subject to subsections (5) to (8), a warrant or certificate shall not be modified under this section except by an instrument under the hand of the Secretary of State or of a senior official.

[F17(4A)Subject to subsections (5A), (6) and (8), a warrant issued by the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998) shall not be modified under this section except by an instrument under the hand of a member of the Scottish Executive or a member of the staff of the Scottish Administration who is a member of the Senior Civil Service and is designated by the Scottish Ministers as a person under whose hand an instrument may be issued in such a case (in this section referred to as “a designated official”)]

(5)Unscheduled parts of an interception warrant shall not be modified under the hand of a senior official except in an urgent case in which—

(a)the Secretary of State has himself expressly authorised the modification; and

(b)a statement of that fact is endorsed on the modifying instrument.

[F18(5A)Unscheduled parts of an interception warrant issued by the Scottish Ministers shall not be modified under the hand of a designated official except in an urgent case in which–

(a)they have themselves (by virtue of provision made under section 63 of the Scotland Act 1998) expressly authorised the modification; and

(b)a statement of that fact is endorsed on the modifying instrument]

[F19(6)Subsection (4) authorises the modification of the scheduled parts of an interception warrant under the hand of a senior official who is either—

(a)the person to whom the warrant is addressed, or

(b)a person holding a position subordinate to that person,

only if the applicable condition specified in subsection (6A) is satisfied and a statement that the condition is satisfied is endorsed on the modifying instrument.

(6A)The applicable condition is—

(a)in the case of an unrenewed warrant, that the warrant is endorsed with a statement that the issue of the warrant is believed to be necessary in the interests of national security; and

(b)in the case of a renewed warrant, that the instrument by which it was last renewed is endorsed with a statement that the renewal is believed to be necessary in the interests of national security.]

F19(7)A section 8(4) certificate shall not be modified under the hand of a senior official except in an urgent case in which—

(a)the official in question holds a position in respect of which he is expressly authorised by provisions contained in the certificate to modify the certificate on the Secretary of State’s behalf; or

(b)the Secretary of State has himself expressly authorised the modification and a statement of that fact is endorsed on the modifying instrument.

(8)Where modifications in accordance with this subsection are expressly authorised by provision contained in the warrant, the scheduled parts of an interception warrant may, in an urgent case, be modified by an instrument under the hand of—

(a)the person to whom the warrant is addressed; or

(b)a person holding any such position subordinate to that person as may be identified in the provisions of the warrant.

(9)Where—

(a)a warrant or certificate is modified by an instrument under the hand of a person other than the Secretary of State [F20or, as the case may be, the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998)], and

(b)a statement for the purposes of subsection (5)(b) [F21, (5A)(b)][F22, (6)]F22 or (7)(b) is endorsed on the instrument, or the modification is made under subsection (8),

that modification shall cease to have effect at the end of the fifth working day following the day of the instrument’s issue.

(10)For the purposes of this section—

(a)the scheduled parts of an interception warrant are any provisions of the warrant that are contained in a schedule of identifying factors comprised in the warrant for the purposes of section 8(2); and

(b)the modifications that are modifications of the scheduled parts of an interception warrant include the insertion of an additional such schedule in the warrant;

and references in this section to unscheduled parts of an interception warrant, and to their modification, shall be construed accordingly.

Annotations:

Amendments (Textual)

F20Words in s. 10(9)(a) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 6(d)(i) (with art. 6)

F21Words in s. 10(9)(b) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 6(d)(ii) (with art. 6)

Modifications etc. (not altering text)

C15S. 10(1)(a)(2) modified (S.) (14.12.2000) by S.I. 2000/3253, arts. 1(1)(2), 2, Sch. 1 para. 2 (with art. 6)

S. 10(1)(a)(2): functions transferred to the Scottish Ministers (S.) (15.12.2000) by virtue of S.I. 2000/3253, arts. 1(1)(3), 3, Sch. 2 (with art. 6)

11 Implementation of warrants.E+W+S+N.I.

(1)Effect may be given to an interception warrant either—

(a)by the person to whom it is addressed; or

(b)by that person acting through, or together with, such other persons as he may require (whether under subsection (2) or otherwise) to provide him with assistance with giving effect to the warrant.

(2)For the purpose of requiring any person to provide assistance in relation to an interception warrant the person to whom it is addressed may—

(a)serve a copy of the warrant on such persons as he considers may be able to provide such assistance; or

(b)make arrangements under which a copy of it is to be or may be so served.

(3)The copy of an interception warrant that is served on any person under subsection (2) may, to the extent authorised—

(a)by the person to whom the warrant is addressed, or

(b)by the arrangements made by him for the purposes of that subsection,

omit any one or more of the schedules to the warrant.

(4)Where a copy of an interception warrant has been served by or on behalf of the person to whom it is addressed on—

(a)a person who provides a postal service,

(b)a person who provides a public telecommunications service, or

(c)a person not falling within paragraph (b) who has control of the whole or any part of a telecommunication system located wholly or partly in the United Kingdom,

it shall (subject to subsection (5)) be the duty of that person to take all such steps for giving effect to the warrant as are notified to him by or on behalf of the person to whom the warrant is addressed.

(5)A person who is under a duty by virtue of subsection (4) to take steps for giving effect to a warrant shall not be required to take any steps which it is not reasonably practicable for him to take.

(6)For the purposes of subsection (5) the steps which it is reasonably practicable for a person to take in a case in which obligations have been imposed on him by or under section 12 shall include every step which it would have been reasonably practicable for him to take had he complied with all the obligations so imposed on him.

(7)A person who knowingly fails to comply with his duty under subsection (4) shall be guilty of an offence and liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both;

(b)on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.

(8)A person’s duty under subsection (4) to take steps for giving effect to a warrant shall be enforceable by civil proceedings by the Secretary of State for an injunction, or for specific performance of a statutory duty under section 45 of the M14Court of Session Act 1988, or for any other appropriate relief.

(9)For the purposes of this Act the provision of assistance with giving effect to an interception warrant includes any disclosure to the person to whom the warrant is addressed, or to persons acting on his behalf, of intercepted material obtained by any interception authorised or required by the warrant, and of any related communications data.

Annotations:

Marginal Citations

Interception capability and costsE+W+S+N.I.

12 Maintenance of interception capability.E+W+S+N.I.

(1)The Secretary of State may by order provide for the imposition by him on persons who—

(a)are providing public postal services or public telecommunications services, or

(b)are proposing to do so,

of such obligations as it appears to him reasonable to impose for the purpose of securing that it is and remains practicable for requirements to provide assistance in relation to interception warrants to be imposed and complied with.

(2)The Secretary of State’s power to impose the obligations provided for by an order under this section shall be exercisable by the giving, in accordance with the order, of a notice requiring the person who is to be subject to the obligations to take all such steps as may be specified or described in the notice.

(3)Subject to subsection (11), the only steps that may be specified or described in a notice given to a person under subsection (2) are steps appearing to the Secretary of State to be necessary for securing that that person has the practical capability of providing any assistance which he may be required to provide in relation to relevant interception warrants.

(4)A person shall not be liable to have an obligation imposed on him in accordance with an order under this section by reason only that he provides, or is proposing to provide, to members of the public a telecommunications service the provision of which is or, as the case may be, will be no more than—

(a)the means by which he provides a service which is not a telecommunications service; or

(b)necessarily incidental to the provision by him of a service which is not a telecommunications service.

(5)Where a notice is given to any person under subsection (2) and otherwise than by virtue of subsection (6)(c), that person may, before the end of such period as may be specified in an order under this section, refer the notice to the Technical Advisory Board.

(6)Where a notice given to any person under subsection (2) is referred to the Technical Advisory Board under subsection (5)—

(a)there shall be no requirement for that person to comply, except in pursuance of a notice under paragraph (c)(ii), with any obligations imposed by the notice;

(b)the Board shall consider the technical requirements and the financial consequences, for the person making the reference, of the notice referred to them and shall report their conclusions on those matters to that person and to the Secretary of State; and

(c)the Secretary of State, after considering any report of the Board relating to the notice, may either—

(i)withdraw the notice; or

(ii)give a further notice under subsection (2) confirming its effect, with or without modifications.

(7)It shall be the duty of a person to whom a notice is given under subsection (2) to comply with the notice; and that duty shall be enforceable by civil proceedings by the Secretary of State for an injunction, or for specific performance of a statutory duty under section 45 of the M15Court of Session Act 1988, or for any other appropriate relief.

(8)A notice for the purposes of subsection (2) must specify such period as appears to the Secretary of State to be reasonable as the period within which the steps specified or described in the notice are to be taken.

(9)Before making an order under this section the Secretary of State shall consult with—

(a)such persons appearing to him to be likely to be subject to the obligations for which it provides,

(b)the Technical Advisory Board,

(c)such persons representing persons falling within paragraph (a), and

(d)such persons with statutory functions in relation to persons falling within that paragraph,

as he considers appropriate.

(10)The Secretary of State shall not make an order under this section unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(11)For the purposes of this section the question whether a person has the practical capability of providing assistance in relation to relevant interception warrants shall include the question whether all such arrangements have been made as the Secretary of State considers necessary—

(a)with respect to the disclosure of intercepted material;

(b)for the purpose of ensuring that security and confidentiality are maintained in relation to, and to matters connected with, the provision of any such assistance; and

(c)for the purpose of facilitating the carrying out of any functions in relation to this Chapter of the Interception of Communications Commissioner;

but before determining for the purposes of the making of any order, or the imposition of any obligation, under this section what arrangements he considers necessary for the purpose mentioned in paragraph (c) the Secretary of State shall consult that Commissioner.

(12)In this section “relevant interception warrant”—

(a)in relation to a person providing a public postal service, means an interception warrant relating to the interception of communications in the course of their transmission by means of that service; and

(b)in relation to a person providing a public telecommunications service, means an interception warrant relating to the interception of communications in the course of their transmission by means of a telecommunication system used for the purposes of that service.

Annotations:

Marginal Citations

13 Technical Advisory Board.E+W+S+N.I.

(1)There shall be a Technical Advisory Board consisting of such number of persons appointed by the Secretary of State as he may by order provide.

(2)The order providing for the membership of the Technical Advisory Board must also make provision which is calculated to ensure—

(a)that the membership of the Technical Advisory Board includes persons likely effectively to represent the interests of the persons on whom obligations may be imposed under section 12;

(b)that the membership of the Board includes persons likely effectively to represent the interests of the persons by or on whose behalf applications for interception warrants may be made;

(c)that such other persons (if any) as the Secretary of State thinks fit may be appointed to be members of the Board; and

(d)that the Board is so constituted as to produce a balance between the representation of the interests mentioned in paragraph (a) and the representation of those mentioned in paragraph (b).

(3)The Secretary of State shall not make an order under this section unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

14 Grants for interception costs.E+W+S+N.I.

(1)It shall be the duty of the Secretary of State to ensure that such arrangements are in force as are necessary for securing that a person who provides—

(a)a postal service, or

(b)a telecommunications service,

receives such contribution as is, in the circumstances of that person’s case, a fair contribution towards the costs incurred, or likely to be incurred, by that person in consequence of the matters mentioned in subsection (2).

(2)Those matters are—

(a)in relation to a person providing a postal service, the issue of interception warrants relating to communications transmitted by means of that postal service;

(b)in relation to a person providing a telecommunications service, the issue of interception warrants relating to communications transmitted by means of a telecommunication system used for the purposes of that service;

(c)in relation to each description of person, the imposition on that person of obligations provided for by an order under section 12.

(3)For the purpose of complying with his duty under this section, the Secretary of State may make arrangements for payments to be made out of money provided by Parliament.

Restrictions on use of intercepted material etc.E+W+S+N.I.

15 General safeguards.E+W+S+N.I.

(1)Subject to subsection (6), it shall be the duty of the Secretary of State to ensure, in relation to all interception warrants, that such arrangements are in force as he considers necessary for securing—

(a)that the requirements of subsections (2) and (3) are satisfied in relation to the intercepted material and any related communications data; and

(b)in the case of warrants in relation to which there are section 8(4) certificates, that the requirements of section 16 are also satisfied.

(2)The requirements of this subsection are satisfied in relation to the intercepted material and any related communications data if each of the following—

(a)the number of persons to whom any of the material or data is disclosed or otherwise made available,

(b)the extent to which any of the material or data is disclosed or otherwise made available,

(c)the extent to which any of the material or data is copied, and

(d)the number of copies that are made,

is limited to the minimum that is necessary for the authorised purposes.

(3)The requirements of this subsection are satisfied in relation to the intercepted material and any related communications data if each copy made of any of the material or data (if not destroyed earlier) is destroyed as soon as there are no longer any grounds for retaining it as necessary for any of the authorised purposes.

(4)For the purposes of this section something is necessary for the authorised purposes if, and only if—

(a)it continues to be, or is likely to become, necessary as mentioned in section 5(3);

(b)it is necessary for facilitating the carrying out of any of the functions under this Chapter of the Secretary of State;

(c)it is necessary for facilitating the carrying out of any functions in relation to this Part of the Interception of Communications Commissioner or of the Tribunal;

(d)it is necessary to ensure that a person conducting a criminal prosecution has the information he needs to determine what is required of him by his duty to secure the fairness of the prosecution; or

(e)it is necessary for the performance of any duty imposed on any person by the M16Public Records Act 1958 or the M17Public Records Act (Northern Ireland) 1923.

(5)The arrangements for the time being in force under this section for securing that the requirements of subsection (2) are satisfied in relation to the intercepted material or any related communications data must include such arrangements as the Secretary of State considers necessary for securing that every copy of the material or data that is made is stored, for so long as it is retained, in a secure manner.

(6)Arrangements in relation to interception warrants which are made for the purposes of subsection (1)—

(a)shall not be required to secure that the requirements of subsections (2) and (3) are satisfied in so far as they relate to any of the intercepted material or related communications data, or any copy of any such material or data, possession of which has been surrendered to any authorities of a country or territory outside the United Kingdom; but

(b)shall be required to secure, in the case of every such warrant, that possession of the intercepted material and data and of copies of the material or data is surrendered to authorities of a country or territory outside the United Kingdom only if the requirements of subsection (7) are satisfied.

(7)The requirements of this subsection are satisfied in the case of a warrant if it appears to the Secretary of State—

(a)that requirements corresponding to those of subsections (2) and (3) will apply, to such extent (if any) as the Secretary of State thinks fit, in relation to any of the intercepted material or related communications data possession of which, or of any copy of which, is surrendered to the authorities in question; and

(b)that restrictions are in force which would prevent, to such extent (if any) as the Secretary of State thinks fit, the doing of anything in, for the purposes of or in connection with any proceedings outside the United Kingdom which would result in such a disclosure as, by virtue of section 17, could not be made in the United Kingdom.

(8)In this section “copy”, in relation to intercepted material or related communications data, means any of the following (whether or not in documentary form)—

(a)any copy, extract or summary of the material or data which identifies itself as the product of an interception, and

(b)any record referring to an interception which is a record of the identities of the persons to or by whom the intercepted material was sent, or to whom the communications data relates,

and “copied” shall be construed accordingly.

16 Extra safeguards in the case of certificated warrants.E+W+S+N.I.

(1)For the purposes of section 15 the requirements of this section, in the case of a warrant in relation to which there is a section 8(4) certificate, are that the intercepted material is read, looked at or listened to by the persons to whom it becomes available by virtue of the warrant to the extent only that it—

(a)has been certified as material the examination of which is necessary as mentioned in section 5(3)(a), (b) or (c); and

(b)falls within subsection (2).

(2)Subject to subsections (3) and (4), intercepted material falls within this subsection so far only as it is selected to be read, looked at or listened to otherwise than according to a factor which—

(a)is referable to an individual who is known to be for the time being in the British Islands; and

(b)has as its purpose, or one of its purposes, the identification of material contained in communications sent by him, or intended for him.

(3)Intercepted material falls within subsection (2), notwithstanding that it is selected by reference to any such factor as is mentioned in paragraph (a) and (b) of that subsection, if—

(a)it is certified by the Secretary of State for the purposes of section 8(4) that the examination of material selected according to factors referable to the individual in question is necessary as mentioned in subsection 5(3)(a), (b) or (c); and

(b)the material relates only to communications sent during [F23a period specified in the certificate that is no longer than the permitted maximum]F23 .

[F24(3A)In subsection (3)(b) ‘the permitted maximum’ means—

(a)in the case of material the examination of which is certified for the purposes of section 8(4) as necessary in the interests of national security, six months; and

(b)in any other case, three months.]

F24(4)Intercepted material also falls within subsection (2), notwithstanding that it is selected by reference to any such factor as is mentioned in paragraph (a) and (b) of that subsection, if—

(a)the person to whom the warrant is addressed believes, on reasonable grounds, that the circumstances are such that the material would fall within that subsection; or

(b)the conditions set out in subsection (5) below are satisfied in relation to the selection of the material.

(5)Those conditions are satisfied in relation to the selection of intercepted material if—

(a)it has appeared to the person to whom the warrant is addressed that there has been such a relevant change of circumstances as, but for subsection (4)(b), would prevent the intercepted material from falling within subsection (2);

(b)since it first so appeared, a written authorisation to read, look at or listen to the material has been given by a senior official; and

(c)the selection is made before the end of [F25the permitted period]F25 .

[F26(5A)In subsection (5)(c) ‘the permitted period’ means—

(a)in the case of material the examination of which is certified for the purposes of section 8(4) as necessary in the interests of national security, the period ending with the end of the fifth working day after it first appeared as mentioned in subsection (5)(a) to the person to whom the warrant is addressed; and

(b)in any other case, the period ending with the end of the first working day after it first so appeared to that person.]

F26(6)References in this section to its appearing that there has been a relevant change of circumstances are references to its appearing either—

(a)that the individual in question has entered the British Islands; or

(b)that a belief by the person to whom the warrant is addressed in the individual’s presence outside the British Islands was in fact mistaken.

17 Exclusion of matters from legal proceedings.E+W+S+N.I.

(1)Subject to section 18, no evidence shall be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of or in connection with any legal proceedings [F27 or Inquiries Act proceedings]F27 which (in any manner)—

(a)discloses, in circumstances from which its origin in anything falling within subsection (2) may be inferred, any of the contents of an intercepted communication or any related communications data; or

(b)tends (apart from any such disclosure) to suggest that anything falling within subsection (2) has or may have occurred or be going to occur.

(2)The following fall within this subsection—

(a)conduct by a person falling within subsection (3) that was or would be an offence under section 1(1) or (2) of this Act or under section 1 of the M18Interception of Communications Act 1985;

(b)a breach by the Secretary of State of his duty under section 1(4) of this Act;

(c)the issue of an interception warrant or of a warrant under the M19Interception of Communications Act 1985;

(d)the making of an application by any person for an interception warrant, or for a warrant under that Act;

(e)the imposition of any requirement on any person to provide assistance with giving effect to an interception warrant.

(3)The persons referred to in subsection (2)(a) are—

(a)any person to whom a warrant under this Chapter may be addressed;

(b)any person holding office under the Crown;

[F28(c)any member of the staff of the Serious Organised Crime Agency;]

[F29F28(ca)any member of the Scottish Crime and Drug Enforcement Agency;]

F29(e)any person employed by or for the purposes of a police force;

(f)any person providing a postal service or employed for the purposes of any business of providing such a service; and

(g)any person providing a public telecommunications service or employed for the purposes of any business of providing such a service.

(4)[F30 In this section—

18 Exceptions to section 17.E+W+S+N.I.

(1)Section 17(1) shall not apply in relation to—

(a)any proceedings for a relevant offence;

(b)any civil proceedings under section 11(8);

(c)any proceedings before the Tribunal;

(d)any proceedings on an appeal or review for which provision is made by an order under section 67(8);

[F31(da)any control order proceedings (within the meaning of the Prevention of Terrorism Act 2005) or any proceedings arising out of such proceedings;]

[F32F31(db)any financial restrictions proceedings as defined in section 65 of the Counter-Terrorism Act 2008, or any proceedings arising out of such proceedings;]

F32(e)any proceedings before the Special Immigration Appeals Commission or any proceedings arising out of proceedings before that Commission; or

(f)any proceedings before the Proscribed Organisations Appeal Commission or any proceedings arising out of proceedings before that Commission.

(2)Subsection (1) shall not, by virtue of [F33paragraphs (da) to (f)]F33 , authorise the disclosure of anything—

[F34(za)in the case of any proceedings falling within paragraph (da) to—

(i)a person who, within the meaning of the Schedule to the Prevention of Terrorism Act 2005, is or was a relevant party to the control order proceedings; or

(ii)any person who for the purposes of any proceedings so falling (but otherwise than by virtue of an appointment under paragraph 7 of that Schedule) represents a person falling within sub-paragraph (i);]

[F35F34(zb)in the case of proceedings falling within paragraph (db), to—

(i)a person, other than the Treasury, who is or was a party to the proceedings, or

(ii)any person who for the purposes of the proceedings (but otherwise than by virtue of appointment as a special advocate) represents a person falling within sub-paragraph (i);]

F35(a)in the case of any proceedings falling within paragraph (e), to—

(i)the appellant to the Special Immigration Appeals Commission; or

(ii)any person who for the purposes of any proceedings so falling (but otherwise than by virtue of an appointment under section 6 of the M20Special Immigration Appeals Commission Act 1997) represents that appellant;

or

(b)in the case of proceedings falling within paragraph (f), to—

(i)the applicant to the Proscribed Organisations Appeal Commission;

(ii)the organisation concerned (if different);

(iii)any person designated under paragraph 6 of Schedule 3 to the Terrorism Act 2000 to conduct proceedings so falling on behalf of that organisation; or

(iv)any person who for the purposes of any proceedings so falling (but otherwise than by virtue of an appointment under paragraph 7 of that Schedule) represents that applicant or that organisation.

(3)Section 17(1) shall not prohibit anything done in, for the purposes of, or in connection with, so much of any legal proceedings as relates to the fairness or unfairness of a dismissal on the grounds of any conduct constituting an offence under section 1(1) or (2), 11(7) or 19 of this Act, or section 1 of the M21Interception of Communications Act 1985.

(4)Section 17(1)(a) shall not prohibit the disclosure of any of the contents of a communication if the interception of that communication was lawful by virtue of section 1(5)(c), 3 or 4.

(5)Where any disclosure is proposed to be or has been made on the grounds that it is authorised by subsection (4), section 17(1) shall not prohibit the doing of anything in, or for the purposes of, so much of any F36... proceedings as relates to the question whether that disclosure is or was so authorised.

(6)Section 17(1)(b) shall not prohibit the doing of anything that discloses any conduct of a person for which he has been convicted of an offence under section 1(1) or (2), 11(7) or 19 of this Act, or section 1 of the M22Interception of Communications Act 1985.

(7)Nothing in section 17(1) shall prohibit any such disclosure of any information that continues to be available for disclosure as is confined to—

(a)a disclosure to a person conducting a criminal prosecution for the purpose only of enabling that person to determine what is required of him by his duty to secure the fairness of the prosecution; F37...

(b)a disclosure to a relevant judge in a case in which that judge has ordered the disclosure to be made to him alone[F38; or

[F39(c)a disclosure to the panel of an inquiry held under the Inquiries Act 2005 or to a person appointed as counsel to such an inquiry where, in the course of the inquiry, the panel has ordered the disclosure to be made to the panel alone or (as the case may be) to the panel and the person appointed as counsel to the inquiry; or]]

F39F38(8)A relevant judge shall not order a disclosure under subsection (7)(b) except where he is satisfied that the exceptional circumstances of the case make the disclosure essential in the interests of justice.

[F40(8A)The panel of an inquiry shall not order a disclosure under subsection (7)(c) except where it is satisfied that the exceptional circumstances of the case make the disclosure essential to enable the inquiry to fulfil its terms of reference.]

F40(9)Subject to subsection (10), where in any criminal proceedings—

(a)a relevant judge does order a disclosure under subsection (7)(b), and

(b)in consequence of that disclosure he is of the opinion that there are exceptional circumstances requiring him to do so,

he may direct the person conducting the prosecution to make for the purposes of the proceedings any such admission of fact as that judge thinks essential in the interests of justice.

(10)Nothing in any direction under subsection (9) shall authorise or require anything to be done in contravention of section 17(1).

(11)In this section “a relevant judge” means—

(a)any judge of the High Court or of the Crown Court or any Circuit judge;

(b)any judge of the High Court of Justiciary or any sheriff;

[F41(c)in relation to proceedings before the Court Martial, the judge advocate for those proceedings; or]

F41(d)any person holding any such judicial office as entitles him to exercise the jurisdiction of a judge falling within paragraph (a) or (b).

(12)In this section “relevant offence” means—

(a)an offence under any provision of this Act;

(b)an offence under section 1 of the M23Interception of Communications Act 1985;

(c)an offence under [F42section 47 or 48 of the Wireless Telegraphy Act 2006]F42 ;

(d)an offence under F43. . . [F44section 83 or 84 of the Postal Services Act 2000];

(e)

[F45an offence under section 45 of the M24Telecommunications Act 1984;]

F45F45(f)an offence under section 4 of the M25Official Secrets Act 1989 relating to any such information, document or article as is mentioned in subsection (3)(a) of that section;

(g)an offence under section 1 or 2 of the M26Official Secrets Act 1911 relating to any sketch, plan, model, article, note, document or information which incorporates or relates to the contents of any intercepted communication or any related communications data or tends to suggest as mentioned in section 17(1)(b) of this Act;

(h)perjury committed in the course of any proceedings mentioned in subsection (1) or (3) of this section;

(i)attempting or conspiring to commit, or aiding, abetting, counselling or procuring the commission of, an offence falling within any of the preceding paragraphs; and

(j)contempt of court committed in the course of, or in relation to, any proceedings mentioned in subsection (1) or (3) of this section.

(13)In subsection (12) “intercepted communication” has the same meaning as in section 17.

Annotations:

Amendments (Textual)

F32S. 18(1)(db) inserted (27.11.2008) by Counter-Terrorism Act 2008 (c. 28), ss. 69(2), 100(2) (with s. 101(2))

F35S. 18(2)(zb) inserted (27.11.2008) by Counter-Terrorism Act 2008 (c. 28), ss. 69(3), 100(2) (with s. 101(2))

F41S. 18(11)(c) substituted (28.3.2009 for specified purposes and otherwise 31.10.2009) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 169; S.I. 2009/812, art. 3 (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F43Words in s. 18(12)(d) repealed (26.3.2001) by S.I. 2001/1149, art. 3(2), Sch. 2 (with art. 4(11))

F44Words in s. 18(12)(d) substituted (26.3.2001) by S.I. 2001/1149, art. 3(1), Sch. 1 para. 135(2) (with art. 4(8))

F45S. 18(12)(e) repealed (25.7.2003 for specified purposes, 29.12.2003 for further specified purposes) by Communications Act 2003 (c. 21), ss. 406, 408, 411, Sch. 19(1) (with transitional provisions in Sch. 18); S.I. 2003/1900, arts. 1(2), 2(1), 3(1), Sch. 1; S.I. 2003/3142, art. 3(2) (with art. 11)

Marginal Citations

19 Offence for unauthorised disclosures.E+W+S+N.I.

(1)Where an interception warrant has been issued or renewed, it shall be the duty of every person falling within subsection (2) to keep secret all the matters mentioned in subsection (3).

(2)The persons falling within this subsection are—

(a)the persons specified in section 6(2);

(b)every person holding office under the Crown;

[F46(c)every member of the staff of the Serious Organised Crime Agency;]

[F47F46(ca)every member of the Scottish Crime and Drug Enforcement Agency;]

F47(e)every person employed by or for the purposes of a police force;

(f)persons providing postal services or employed for the purposes of any business of providing such a service;

(g)persons providing public telecommunications services or employed for the purposes of any business of providing such a service;

(h)persons having control of the whole or any part of a telecommunication system located wholly or partly in the United Kingdom.

(3)Those matters are—

(a)the existence and contents of the warrant and of any section 8(4) certificate in relation to the warrant;

(b)the details of the issue of the warrant and of any renewal or modification of the warrant or of any such certificate;

(c)the existence and contents of any requirement to provide assistance with giving effect to the warrant;

(d)the steps taken in pursuance of the warrant or of any such requirement; and

(e)everything in the intercepted material, together with any related communications data.

(4)A person who makes a disclosure to another of anything that he is required to keep secret under this section shall be guilty of an offence and liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both;

(b)on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.

(5)In proceedings against any person for an offence under this section in respect of any disclosure, it shall be a defence for that person to show that he could not reasonably have been expected, after first becoming aware of the matter disclosed, to take steps to prevent the disclosure.

(6)In proceedings against any person for an offence under this section in respect of any disclosure, it shall be a defence for that person to show that—

(a)the disclosure was made by or to a professional legal adviser in connection with the giving, by the adviser to any client of his, of advice about the effect of provisions of this Chapter; and

(b)the person to whom or, as the case may be, by whom it was made was the client or a representative of the client.

(7)In proceedings against any person for an offence under this section in respect of any disclosure, it shall be a defence for that person to show that the disclosure was made by a legal adviser—

(a)in contemplation of, or in connection with, any legal proceedings; and

(b)for the purposes of those proceedings.

(8)Neither subsection (6) nor subsection (7) applies in the case of a disclosure made with a view to furthering any criminal purpose.

(9)In proceedings against any person for an offence under this section in respect of any disclosure, it shall be a defence for that person to show that the disclosure was confined to a disclosure made to the Interception of Communications Commissioner or authorised—

(a)by that Commissioner;

(b)by the warrant or the person to whom the warrant is or was addressed;

(c)by the terms of the requirement to provide assistance; or

(d)by section 11(9).

Interpretation of Chapter IE+W+S+N.I.

20 Interpretation of Chapter I.E+W+S+N.I.

In this Chapter—

Chapter IIE+W+S+N.I. Acquisition and disclosure of communications data

21 Lawful acquisition and disclosure of communications data.E+W+S+N.I.

(1)This Chapter applies to—

(a)any conduct in relation to a postal service or telecommunication system for obtaining communications data, other than conduct consisting in the interception of communications in the course of their transmission by means of such a service or system; and

(b)the disclosure to any person of communications data.

(2)Conduct to which this Chapter applies shall be lawful for all purposes if—

(a)it is conduct in which any person is authorised or required to engage by an authorisation or notice granted or given under this Chapter; and

(b)the conduct is in accordance with, or in pursuance of, the authorisation or requirement.

(3)A person shall not be subject to any civil liability in respect of any conduct of his which—

(a)is incidental to any conduct that is lawful by virtue of subsection (2); and

(b)is not itself conduct an authorisation or warrant for which is capable of being granted under a relevant enactment and might reasonably have been expected to have been sought in the case in question.

(4)In this Chapter “communications data” means any of the following—

(a)any traffic data comprised in or attached to a communication (whether by the sender or otherwise) for the purposes of any postal service or telecommunication system by means of which it is being or may be transmitted;

(b)any information which includes none of the contents of a communication (apart from any information falling within paragraph (a)) and is about the use made by any person—

(i)of any postal service or telecommunications service; or

(ii)in connection with the provision to or use by any person of any telecommunications service, of any part of a telecommunication system;

(c)any information not falling within paragraph (a) or (b) that is held or obtained, in relation to persons to whom he provides the service, by a person providing a postal service or telecommunications service.

(5)In this section “relevant enactment” means—

(a)an enactment contained in this Act;

(b)section 5 of the M27Intelligence Services Act 1994 (warrants for the intelligence services); or

(c)an enactment contained in Part III of the M28Police Act 1997 (powers of the police and of [F48officers of Revenue and Customs).F48]

(6)In this section “traffic data”, in relation to any communication, means—

(a)any data identifying, or purporting to identify, any person, apparatus or location to or from which the communication is or may be transmitted,

(b)any data identifying or selecting, or purporting to identify or select, apparatus through which, or by means of which, the communication is or may be transmitted,

(c)any data comprising signals for the actuation of apparatus used for the purposes of a telecommunication system for effecting (in whole or in part) the transmission of any communication, and

(d)any data identifying the data or other data as data comprised in or attached to a particular communication,

but that expression includes data identifying a computer file or computer program access to which is obtained, or which is run, by means of the communication to the extent only that the file or program is identified by reference to the apparatus in which it is stored.

(7)In this section—

(a)references, in relation to traffic data comprising signals for the actuation of apparatus, to a telecommunication system by means of which a communication is being or may be transmitted include references to any telecommunication system in which that apparatus is comprised; and

(b)references to traffic data being attached to a communication include references to the data and the communication being logically associated with each other;

and in this section “data”, in relation to a postal item, means anything written on the outside of the item.

Annotations:

Amendments (Textual)

Commencement Information

I2S. 21 wholly in force; s. 21 not in force at Royal Assent see s. 83(2); S. 21(4) in force for certain purposes at 2.10.2000 by S.I. 2000/2543, art. 3; s. 21 wholly in force at 5.1.2004 by S.I. 2003./3140, {art. 2(a)}

Marginal Citations

22 Obtaining and disclosing communications data.E+W+S+N.I.

(1)This section applies where a person designated for the purposes of this Chapter believes that it is necessary on grounds falling within subsection (2) to obtain any communications data.

(2)It is necessary on grounds falling within this subsection to obtain communications data if it is necessary—

(a)in the interests of national security;

(b)for the purpose of preventing or detecting crime or of preventing disorder;

(c)in the interests of the economic well-being of the United Kingdom;

(d)in the interests of public safety;

(e)for the purpose of protecting public health;

(f)for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department;

(g)for the purpose, in an emergency, of preventing death or injury or any damage to a person’s physical or mental health, or of mitigating any injury or damage to a person’s physical or mental health; or

(h)for any purpose (not falling within paragraphs (a) to (g)) which is specified for the purposes of this subsection by an order made by the Secretary of State.

(3)Subject to subsection (5), the designated person may grant an authorisation for persons holding offices, ranks or positions with the same relevant public authority as the designated person to engage in any conduct to which this Chapter applies.

[F49(3A)Subsection (3B) applies if—

(a)a person is the designated person by reference to an office, rank or position with a police force; and

(b)the chief officer of police of that force has made an agreement under section 23(1) of the Police Act 1996 with the chief officer of police of one or more other police forces.

(3B)The designated person may grant an authorisation for persons holding offices, ranks or positions with a collaborative force to engage in any conduct to which this Chapter applies.

(3C)For the purposes of subsection (3B) a police force is a collaborative force if—

(a)its chief officer of police is a party to the agreement mentioned in subsection (3A)(b); and

(b)the persons holding offices, ranks or positions with it are permitted by the terms of the agreement to be granted authorisations by the designated person.

(3D)A reference in subsections (3A) to (3C) to a police force is to the following—

(a)any police force maintained under section 2 of the Police Act 1996 (police forces in England and Wales outside London);

(b)the metropolitan police force; and

(c)the City of London police force.

(3E)Subsection (3F) applies if—

(a)a person is the designated person by reference to an office, rank or position with a Scottish police force; and

(b)the chief constable of that force has made an agreement under section 12(1) of the Police (Scotland) Act 1967 with the chief constable of one or more other Scottish police forces.

(3F)The designated person may grant an authorisation for persons holding offices, ranks or positions with a collaborative force to engage in any conduct to which this Chapter applies.

(3G)For the purposes of subsection (3F) a Scottish police force is a collaborative force if—

(a)its chief constable is a party to the agreement mentioned in subsection (3E)(b); and

(b)the persons holding offices, ranks or positions with it are permitted by the terms of the agreement to be granted authorisations by the designated person.

(3H)A reference in subsections (3E) to (3G) to a Scottish police force is to a police force maintained under or by virtue of section 1 of the Police (Scotland) Act 1967.

(3I)Subsections (3B) and (3F) are subject to subsection (5).]

F49(4)Subject to subsection (5), where it appears to the designated person that a postal or telecommunications operator is or may be in possession of, or be capable of obtaining, any communications data, the designated person may, by notice to the postal or telecommunications operator, require the operator—

(a)if the operator is not already in possession of the data, to obtain the data; and

(b)in any case, to disclose all of the data in his possession or subsequently obtained by him.

(5)The designated person shall not grant an authorisation under subsection (3) [F50, (3B) or (3F)]F50, or give a notice under subsection (4), unless he believes that obtaining the data in question by the conduct authorised or required by the authorisation or notice is proportionate to what is sought to be achieved by so obtaining the data.

(6)It shall be the duty of the postal or telecommunications operator to comply with the requirements of any notice given to him under subsection (4).

(7)A person who is under a duty by virtue of subsection (6) shall not be required to do anything in pursuance of that duty which it is not reasonably practicable for him to do.

(8)The duty imposed by subsection (6) shall be enforceable by civil proceedings by the Secretary of State for an injunction, or for specific performance of a statutory duty under section 45 of the M29Court of Session Act 1988, or for any other appropriate relief.

(9)The Secretary of State shall not make an order under subsection (2)(h) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

Annotations:

Amendments (Textual)

Marginal Citations

23 Form and duration of authorisations and notices.E+W+S+N.I.

(1)An authorisation under section 22(3) [F51, (3B) or (3F) .F51]

(a)must be granted in writing or (if not in writing) in a manner that produces a record of its having been granted;

(b)must describe the conduct to which this Chapter applies that is authorised and the communications data in relation to which it is authorised;

(c)must specify the matters falling within section 22(2) by reference to which it is granted; and

(d)must specify the office, rank or position held by the person granting the authorisation.

(2)A notice under section 22(4) requiring communications data to be disclosed or to be obtained and disclosed—

(a)must be given in writing or (if not in writing) must be given in a manner that produces a record of its having been given;

(b)must describe the communications data to be obtained or disclosed under the notice;

(c)must specify the matters falling within section 22(2) by reference to which the notice is given;

(d)must specify the office, rank or position held by the person giving it; and

(e)must specify the manner in which any disclosure required by the notice is to be made.

(3)A notice under section 22(4) shall not require the disclosure of data to any person other than—

(a)the person giving the notice; or

(b)such other person as may be specified in or otherwise identified by, or in accordance with, the provisions of the notice;

but the provisions of the notice shall not specify or otherwise identify a person for the purposes of paragraph (b) unless he holds an office, rank or position with the same relevant public authority as the person giving the notice [F52(subject to subsections (3A) and (3D))]F52.

[F53(3A)The provisions of a notice under section 22(4) may specify or otherwise identify a person for the purposes of subsection (3)(b) above if—

(a)the person giving the notice holds an office, rank or position with a police force (“notifying force”);

(b)the chief officer of police of the notifying force has made an agreement under section 23(1) of the Police Act 1996 with the chief officer of police of one or more other police forces; and

(c)the person specified in or otherwise identified in the notice holds an office, rank or position with a collaborative force.

(3B)For the purposes of subsection (3A) a police force is a collaborative force if—

(a)its chief officer of police is a party to the agreement mentioned in subsection (3A)(b); and

(b)the persons holding offices, ranks or positions with it are permitted by the terms of the agreement to be specified or otherwise identified in notices under section 22(4) given by a person holding an office, rank or position with the notifying force.

(3C)A reference in subsections (3A) and (3B) to a police force is to the following—

(a)any police force maintained under section 2 of the Police Act 1996 (police forces in England and Wales outside London);

(b)the metropolitan police force; and

(c)the City of London police force.

(3D)The provisions of a notice under section 22(4) may also specify or otherwise identify a person for the purposes of subsection (3)(b) above if—

(a)the person giving the notice holds an office, rank or position with a Scottish police force (“Scottish notifying force”);

(b)the chief constable of the Scottish notifying force has made an agreement under section 12(1) of the Police (Scotland) Act 1967 with the chief constable of one or more other Scottish police forces; and

(c)the person specified in or otherwise identified in the notice holds an office, rank or position with a collaborative force.

(3E)For the purposes of subsection (3D) a Scottish police force is a collaborative force if—

(a)its chief constable is a party to the agreement mentioned in subsection (3D)(b); and

(b)the persons holding offices, ranks or positions with it are permitted by the terms of the agreement to be specified or otherwise identified in notices under section 22(4) given by a person holding an office, rank or position with the Scottish notifying force.

(3F)A reference in subsections (3D) and (3E) to a Scottish police force is to a police force maintained under or by virtue of section 1 of the Police (Scotland) Act 1967.]

F53(4)An authorisation under section 22(3) [F54, (3B) or (3F) .]F54 or notice under section 22(4)—

(a)shall not authorise or require any data to be obtained after the end of the period of one month beginning with the date on which the authorisation is granted or the notice given; and

(b)in the case of a notice, shall not authorise or require any disclosure after the end of that period of any data not in the possession of, or obtained by, the postal or telecommunications operator at a time during that period.

(5)An authorisation under section 22(3) [F55, (3B) or (3F) .]F55 or notice under section 22(4) may be renewed at any time before the end of the period of one month applying (in accordance with subsection (4) or subsection (7)) to that authorisation or notice.

(6)A renewal of an authorisation under section 22(3) [F56, (3B) or (3F) .]F56 or of a notice under section 22(4) shall be by the grant or giving, in accordance with this section, of a further authorisation or notice.

(7)Subsection (4) shall have effect in relation to a renewed authorisation or renewal notice as if the period of one month mentioned in that subsection did not begin until the end of the period of one month applicable to the authorisation or notice that is current at the time of the renewal.

(8)Where a person who has given a notice under subsection (4) of section 22 is satisfied—

(a)that it is no longer necessary on grounds falling within subsection (2) of that section for the requirements of the notice to be complied with, or

(b)that the conduct required by the notice is no longer proportionate to what is sought to be achieved by obtaining communications data to which the notice relates,

he shall cancel the notice.

(9)The Secretary of State may by regulations provide for the person by whom any duty imposed by subsection (8) is to be performed in a case in which it would otherwise fall on a person who is no longer available to perform it; and regulations under this subsection may provide for the person on whom the duty is to fall to be a person appointed in accordance with the regulations.

24 Arrangements for payments.E+W+S+N.I.

(1)It shall be the duty of the Secretary of State to ensure that such arrangements are in force as he thinks appropriate for requiring or authorising, in such cases as he thinks fit, the making to postal and telecommunications operators of appropriate contributions towards the costs incurred by them in complying with notices under section 22(4).

(2)For the purpose of complying with his duty under this section, the Secretary of State may make arrangements for payments to be made out of money provided by Parliament.

25 Interpretation of Chapter II.E+W+S+N.I.

(1)In this Chapter—

(2)Subject to subsection (3), the persons designated for the purposes of this Chapter are the individuals holding such offices, ranks or positions with relevant public authorities as are prescribed for the purposes of this subsection by an order made by the Secretary of State.

(3)The Secretary of State may by order impose restrictions—

(a)on the authorisations and notices under this Chapter that may be granted or given by any individual holding an office, rank or position with a specified public authority; and

(b)on the circumstances in which, or the purposes for which, such authorisations may be granted or notices given by any such individual.

[F60(3A)References in this Chapter to an individual holding an office or position with the Serious Organised Crime Agency include references to any member of the staff of that Agency.]

[F61F60(4)The Secretary of State may by order—

(a)remove any person from the list of persons who are for the time being relevant public authorities for the purposes of this Chapter; and

(b)make such consequential amendments, repeals or revocations in this or any other enactment as appear to him to be necessary or expedient.

(5)The Secretary of State shall not make an order under this section—

(a)that adds any person to the list of persons who are for the time being relevant public authorities for the purposes of this Chapter, or

(b)that by virtue of subsection (4)(b) amends or repeals any provision of an Act,

unless a draft of the order has been laid before Parliament and approved by a resolution of each House.F61]

Annotations:

Amendments (Textual)

F57S. 25(1): para. (c) in the definition of "relevant public authority" substituted (1.4.2006) for paras. (c)(d) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 178, Sch. 4 para. 135(2); S.I. 2006/378, art. 4(1), Sch. para. 10 (subject to art. 4(2)-(7))

F59S. 25(1): paras. (d), (e), in the definition of "relevant public authority" substituted (15.2.2008) for para. (d) by Serious Crime Act 2007 (c. 27), ss. 88, 94 {Sch. 12 para. 8}; S.I. 2008/219, art. 2(b)

Part IIE+W+S+N.I. Surveillance and covert human intelligence sources

Annotations:

Modifications etc. (not altering text)

C28Pt. II (ss. 26-48) applied (with modifications)(16.3.2001) by S.I. 2001/1057, arts. 2, 3

Pt. II (ss. 26-48): power to apply (with modifications) conferred (1.10.2002) by 2002 c. 30, s. 19(2)(a); S.I. 2002/2306, art. 2(b)(v)

IntroductoryE+W+S+N.I.

26 Conduct to which Part II applies.E+W+S+N.I.

(1)This Part applies to the following conduct—

(a)directed surveillance;

(b)intrusive surveillance; and

(c)the conduct and use of covert human intelligence sources.

(2)Subject to subsection (6), surveillance is directed for the purposes of this Part if it is covert but not intrusive and is undertaken—

(a)for the purposes of a specific investigation or a specific operation;

(b)in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation); and

(c)otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under this Part to be sought for the carrying out of the surveillance.

(3)Subject to subsections (4) to (6), surveillance is intrusive for the purposes of this Part if, and only if, it is covert surveillance that—

(a)is carried out in relation to anything taking place on any residential premises or in any private vehicle; and

(b)involves the presence of an individual on the premises or in the vehicle or is carried out by means of a surveillance device.

(4)For the purposes of this Part surveillance is not intrusive to the extent that—

(a)it is carried out by means only of a surveillance device designed or adapted principally for the purpose of providing information about the location of a vehicle; or

(b)it is surveillance consisting in any such interception of a communication as falls within section 48(4).

(5)For the purposes of this Part surveillance which—

(a)is carried out by means of a surveillance device in relation to anything taking place on any residential premises or in any private vehicle, but

(b)is carried out without that device being present on the premises or in the vehicle,

is not intrusive unless the device is such that it consistently provides information of the same quality and detail as might be expected to be obtained from a device actually present on the premises or in the vehicle.

(6)For the purposes of this Part surveillance which—

(a)is carried out by means of apparatus designed or adapted for the purpose of detecting the installation or use in any residential or other premises of a television receiver (within the meaning of [F62Part 4 of the Communications Act 2003)]F62 , and

(b)is carried out from outside those premises exclusively for that purpose,

is neither directed nor intrusive.

(7)In this Part—

(a)references to the conduct of a covert human intelligence source are references to any conduct of such a source which falls within any of paragraphs (a) to (c) of subsection (8), or is incidental to anything falling within any of those paragraphs; and

(b)references to the use of a covert human intelligence source are references to inducing, asking or assisting a person to engage in the conduct of such a source, or to obtain information by means of the conduct of such a source.

(8)For the purposes of this Part a person is a covert human intelligence source if—

(a)he establishes or maintains a personal or other relationship with a person for the covert purpose of facilitating the doing of anything falling within paragraph (b) or (c);

(b)he covertly uses such a relationship to obtain information or to provide access to any information to another person; or

(c)he covertly discloses information obtained by the use of such a relationship, or as a consequence of the existence of such a relationship.

(9)For the purposes of this section—

(a)surveillance is covert if, and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place;

(b)a purpose is covert, in relation to the establishment or maintenance of a personal or other relationship, if and only if the relationship is conducted in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the purpose; and

(c)a relationship is used covertly, and information obtained as mentioned in subsection (8)(c) is disclosed covertly, if and only if it is used or, as the case may be, disclosed in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the use or disclosure in question.

(10)In this section “private information”, in relation to a person, includes any information relating to his private or family life.

(11)References in this section, in relation to a vehicle, to the presence of a surveillance device in the vehicle include references to its being located on or under the vehicle and also include references to its being attached to it.

Annotations:

Amendments (Textual)

F62Words in s. 26(6)(a) substituted (1.4.2004) by Communications Act 2003 (c. 21), ss. 406, 411(2)(3), Sch. 17 para. 161(2) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 4(2), Sch. 2

Authorisation of surveillance and human intelligence sourcesE+W+S+N.I.

27 Lawful surveillance etc.E+W+S+N.I.

(1)Conduct to which this Part applies shall be lawful for all purposes if—

(a)an authorisation under this Part confers an entitlement to engage in that conduct on the person whose conduct it is; and

(b)his conduct is in accordance with the authorisation.

(2)A person shall not be subject to any civil liability in respect of any conduct of his which—

(a)is incidental to any conduct that is lawful by virtue of subsection (1); and

(b)is not itself conduct an authorisation or warrant for which is capable of being granted under a relevant enactment and might reasonably have been expected to have been sought in the case in question.

(3)The conduct that may be authorised under this Part includes conduct outside the United Kingdom.

(4)In this section “relevant enactment” means—

(a)an enactment contained in this Act;

(b)section 5 of the M30Intelligence Services Act 1994 (warrants for the intelligence services); or

(c)an enactment contained in Part III of the M31Police Act 1997 (powers of the police and of [F63officers of Revenue and Customs).F63]

Annotations:

Amendments (Textual)

Marginal Citations

28 Authorisation of directed surveillance.E+W+S+N.I.

(1)Subject to the following provisions of this Part, the persons designated for the purposes of this section shall each have power to grant authorisations for the carrying out of directed surveillance.

(2)A person shall not grant an authorisation for the carrying out of directed surveillance unless he believes—

(a)that the authorisation is necessary on grounds falling within subsection (3); and

(b)that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out.

(3)An authorisation is necessary on grounds falling within this subsection if it is necessary—

(a)in the interests of national security;

(b)for the purpose of preventing or detecting crime or of preventing disorder;

(c)in the interests of the economic well-being of the United Kingdom;

(d)in the interests of public safety;

(e)for the purpose of protecting public health;

(f)for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or

(g)for any purpose (not falling within paragraphs (a) to (f)) which is specified for the purposes of this subsection by an order made by the Secretary of State.

(4)The conduct that is authorised by an authorisation for the carrying out of directed surveillance is any conduct that—

(a)consists in the carrying out of directed surveillance of any such description as is specified in the authorisation; and

(b)is carried out in the circumstances described in the authorisation and for the purposes of the investigation or operation specified or described in the authorisation.

(5)The Secretary of State shall not make an order under subsection (3)(g) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

29 Authorisation of covert human intelligence sources.E+W+S+N.I.

(1)Subject to the following provisions of this Part, the persons designated for the purposes of this section shall each have power to grant authorisations for the conduct or the use of a covert human intelligence source.

(2)A person shall not grant an authorisation for the conduct or the use of a covert human intelligence source unless he believes—

(a)that the authorisation is necessary on grounds falling within subsection (3);

(b)that the authorised conduct or use is proportionate to what is sought to be achieved by that conduct or use; and

[F64(c)that arrangements exist for the source's case that satisfy—

(i)the requirements of subsection (4A), in the case of a source of a relevant collaborative unit;

(ii)the requirements of subsection (4B), in the case of a source of a relevant Scottish collaborative unit;

(iii)the requirements of subsection (5), in the case of any other source;

and that satisfy such other requirements as may be imposed by order made by the Secretary of State.]

[F65F64(2A)For the purposes of subsection (2)—

(a)a relevant collaborative unit is a unit consisting of two or more police forces whose chief officers of police have made an agreement under section 23(1) of the Police Act 1996 which relates to the discharge by persons holding offices, ranks or positions with any of the forces of functions in connection with the conduct or use of the source; and

(b)a relevant Scottish collaborative unit is a unit consisting of two or more Scottish police forces whose chief constables have made an agreement under section 12(1) of the Police (Scotland) Act 1967 which relates to the discharge by persons holding offices, ranks or positions with any of the forces of functions in connection with the conduct or use of the source.]

F65(3)An authorisation is necessary on grounds falling within this subsection if it is necessary—

(a)in the interests of national security;

(b)for the purpose of preventing or detecting crime or of preventing disorder;

(c)in the interests of the economic well-being of the United Kingdom;

(d)in the interests of public safety;

(e)for the purpose of protecting public health;

(f)for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or

(g)for any purpose (not falling within paragraphs (a) to (f)) which is specified for the purposes of this subsection by an order made by the Secretary of State.

(4)The conduct that is authorised by an authorisation for the conduct or the use of a covert human intelligence source is any conduct that—

(a)is comprised in any such activities involving conduct of a covert human intelligence source, or the use of a covert human intelligence source, as are specified or described in the authorisation;

(b)consists in conduct by or in relation to the person who is so specified or described as the person to whose actions as a covert human intelligence source the authorisation relates; and

(c)is carried out for the purposes of, or in connection with, the investigation or operation so specified or described.

[F66(4A)For the purposes of this Part there are arrangements for the source's case that satisfy the requirements of this subsection if such arrangements are in force as are necessary for ensuring—

(a)that there will at all times be a qualifying person who will have day-to-day responsibility for dealing with the source, and for the source's security and welfare;

(b)that there will at all times be another qualifying person who will have general oversight of the use made of the source;

(c)that there will at all times be a qualifying person who will have responsibility for maintaining a record of the use made of the source;

(d)that the records relating to the source that are maintained by virtue of paragraph (c) will always contain particulars of all such matters (if any) as may be specified for the purposes of this paragraph in regulations made by the Secretary of State; and

(e)that records maintained by virtue of paragraph (c) that disclose the identity of the source will not be available to persons except to the extent that there is a need for access to them to be made available to those persons.

(4B)For the purposes of this Part there are arrangements for the source's case that satisfy the requirements of this subsection if such arrangements are in force as are necessary for ensuring—

(a)that there will at all times be a Scottish qualifying person who will have day-to-day responsibility for dealing with the source, and for the source's security and welfare;

(b)that there will at all times be another Scottish qualifying person who will have general oversight of the use made of the source;

(c)that there will at all times be a Scottish qualifying person who will have responsibility for maintaining a record of the use made of the source;

(d)that the records relating to the source that are maintained by virtue of paragraph (c) will always contain particulars of all such matters (if any) as may be specified for the purposes of this paragraph in regulations made by the Secretary of State; and

(e)that records maintained by virtue of paragraph (c) that disclose the identity of the source will not be available to persons except to the extent that there is a need for access to them to be made available to those persons.]

F66(5)For the purposes of this Part there are arrangements for the source’s case that satisfy the requirements of this subsection if such arrangements are in force as are necessary for ensuring—

(a)that there will at all times be a person holding an office, rank or position with the relevant investigating authority who will have day-to-day responsibility for dealing with the source on behalf of that authority, and for the source’s security and welfare;

(b)that there will at all times be another person holding an office, rank or position with the relevant investigating authority who will have general oversight of the use made of the source;

(c)that there will at all times be a person holding an office, rank or position with the relevant investigating authority who will have responsibility for maintaining a record of the use made of the source;

(d)that the records relating to the source that are maintained by the relevant investigating authority will always contain particulars of all such matters (if any) as may be specified for the purposes of this paragraph in regulations made by the Secretary of State; and

(e)that records maintained by the relevant investigating authority that disclose the identity of the source will not be available to persons except to the extent that there is a need for access to them to be made available to those persons.

(6)The Secretary of State shall not make an order under subsection (3)(g) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(7)The Secretary of State may by order—

(a)prohibit the authorisation under this section of any such conduct or uses of covert human intelligence sources as may be described in the order; and

(b)impose requirements, in addition to those provided for by subsection (2), that must be satisfied before an authorisation is granted under this section for any such conduct or uses of covert human intelligence sources as may be so described.

[F67(7A)For the purposes of subsection (4A) a person is a qualifying person if—

(a)the person holds an office, rank or position with a police force whose chief officer of police is a party to the agreement mentioned in subsection (2A)(a); and

(b)persons holding offices, ranks or positions with that force are permitted by the terms of the agreement to have the responsibility mentioned in paragraph (a) or (c) of subsection (4A) or the general oversight mentioned in paragraph (b) of that subsection (as the case may require).

(7B)For the purposes of subsection (4B), a person is a Scottish qualifying person if—

(a)the person holds an office, rank or position with a Scottish police force whose chief constable is a party to the agreement mentioned in subsection (2A)(b); and

(b)persons holding offices, ranks or positions with that force are permitted by the terms of the agreement to have the responsibility mentioned in paragraph (a) or (c) of subsection (4B) or the general oversight mentioned in paragraph (b) of that subsection (as the case may require).]

F67(8)In this section “relevant investigating authority”, in relation to an authorisation for the conduct or the use of an individual as a covert human intelligence source, means (subject to subsection (9)) the public authority for whose benefit the activities of that individual as such a source are to take place.

(9)In the case of any authorisation for the conduct or the use of a covert human intelligence source whose activities are to be for the benefit of more than one public authority, the references in subsection (5) to the relevant investigating authority are references to one of them (whether or not the same one in the case of each reference).

[F68(10)For the purposes of this section—

(a)references to a police force are to the following—

(i)any police force maintained under section 2 of the Police Act 1996 (police forces in England and Wales outside London);

(ii)the metropolitan police force; and

(iii)the City of London police force; and

(b)references to a Scottish police force are to a police force maintained under or by virtue of section 1 of the Police (Scotland) Act 1967.F68]

30 Persons entitled to grant authorisations under ss. 28 and 29.E+W+S+N.I.

(1)Subject to subsection (3), the persons designated for the purposes of sections 28 and 29 are the individuals holding such offices, ranks or positions with relevant public authorities as are prescribed for the purposes of this subsection by an order under this section.

(2)For the purposes of the grant of an authorisation that combines—

(a)an authorisation under section 28 or 29, and

(b)an authorisation by the Secretary of State for the carrying out of intrusive surveillance,

the Secretary of State himself shall be a person designated for the purposes of that section.

(3)An order under this section may impose restrictions—

(a)on the authorisations under sections 28 and 29 that may be granted by any individual holding an office, rank or position with a specified public authority; and

(b)on the circumstances in which, or the purposes for which, such authorisations may be granted by any such individual.

(4)A public authority is a relevant public authority for the purposes of this section—

(a)in relation to section 28 if it is specified in Part I or II of Schedule 1; and

(b)in relation to section 29 if it is specified in Part I of that Schedule.

(5)An order under this section may amend Schedule 1 by—

(a)adding a public authority to Part I or II of that Schedule;

(b)removing a public authority from that Schedule;

(c)moving a public authority from one Part of that Schedule to the other;

(d)making any change consequential on any change in the name of a public authority specified in that Schedule.

(6)Without prejudice to section 31, the power to make an order under this section shall be exercisable by the Secretary of State.

(7)The Secretary of State shall not make an order under subsection (5) containing any provision for—

(a)adding any public authority to Part I or II of that Schedule, or

(b)moving any public authority from Part II to Part I of that Schedule,

unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

31 Orders under s. 30 for Northern Ireland.E+W+S+N.I.

(1)Subject to subsections (2) and (3), the power to make an order under section 30 for the purposes of the grant of authorisations for conduct in Northern Ireland shall be exercisable by the Office of the First Minister and deputy First Minister in Northern Ireland (concurrently with being exercisable by the Secretary of State).

(2)The power of the Office of the First Minister and deputy First Minister to make an order under section 30 by virtue of subsection (1) or (3) of that section shall not be exercisable in relation to any public authority other than—

(a)the Food Standards Agency;

F69(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)an authority added to Schedule 1 by an order made by that Office;

(d)an authority added to that Schedule by an order made by the Secretary of State which it would (apart from that order) have been within the powers of that Office to add to that Schedule for the purposes mentioned in subsection (1) of this section.

(3)The power of the Office of the First Minister and deputy First Minister to make an order under section 30—

(a)shall not include power to make any provision dealing with an excepted matter;

(b)shall not include power, except with the consent of the Secretary of State, to make any provision dealing with a reserved matter.

(4)The power of the Office of the First Minister and deputy First Minister to make an order under section 30 shall be exercisable by statutory rule for the purposes of the M32Statutory Rules (Northern Ireland) Order 1979.

(5)A statutory rule containing an order under section 30 which makes provision by virtue of subsection (5) of that section for—

(a)adding any public authority to Part I or II of Schedule 1, or

(b)moving any public authority from Part II to Part I of that Schedule,

shall be subject to affirmative resolution (within the meaning of section 41(4) of the M33Interpretation Act (Northern Ireland) 1954).

(6)A statutory rule containing an order under section 30 (other than one to which subsection (5) of this section applies) shall be subject to negative resolution (within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954).

(7)An order under section 30 made by the Office of the First Minister and deputy First Minister may—

(a)make different provision for different cases;

(b)contain such incidental, supplemental, consequential and transitional provision as that Office thinks fit.

(8)The reference in subsection (2) to an addition to Schedule 1 being within the powers of the Office of the First Minister and deputy First Minister includes a reference to its being within the powers exercisable by that Office with the consent for the purposes of subsection (3)(b) of the Secretary of State.

(9)In this section “excepted matter” and “reserved matter” have the same meanings as in the M34Northern Ireland Act 1998; and, in relation to those matters, section 98(2) of that Act (meaning of “deals with”) applies for the purposes of this section as it applies for the purposes of that Act.

Annotations:

Amendments (Textual)

F69S. 31(2)(b) repealed (15.11.2001) by S.I. 2001/3686, art. 6(17)(a) (with art. 8)

Marginal Citations

32 Authorisation of intrusive surveillance.E+W+S+N.I.

(1)Subject to the following provisions of this Part, the Secretary of State and each of the senior authorising officers shall have power to grant authorisations for the carrying out of intrusive surveillance.

(2)Neither the Secretary of State nor any senior authorising officer shall grant an authorisation for the carrying out of intrusive surveillance unless he believes—

(a)that the authorisation is necessary on grounds falling within subsection (3); and

(b)that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out.

(3)Subject to the following provisions of this section, an authorisation is necessary on grounds falling within this subsection if it is necessary—

(a)in the interests of national security;

(b)for the purpose of preventing or detecting serious crime; or

(c)in the interests of the economic well-being of the United Kingdom.

[F70(3A)In the case of an authorisation granted by the chairman of the OFT, the authorisation is necessary on grounds falling within subsection (3) only if it is necessary for the purpose of preventing or detecting an offence under section 188 of the Enterprise Act 2002 (cartel offence).]

(4)The matters to be taken into account in considering whether the requirements of subsection (2) are satisfied in the case of any authorisation shall include whether the information which it is thought necessary to obtain by the authorised conduct could reasonably be obtained by other means.

(5)The conduct that is authorised by an authorisation for the carrying out of intrusive surveillance is any conduct that—

(a)consists in the carrying out of intrusive surveillance of any such description as is specified in the authorisation;

(b)is carried out in relation to the residential premises specified or described in the authorisation or in relation to the private vehicle so specified or described; and

(c)is carried out for the purposes of, or in connection with, the investigation or operation so specified or described.

(6)For the purposes of this section the senior authorising officers are—

(a)the chief constable of every police force maintained under section 2 of the M35Police Act 1996 (police forces in England and Wales outside London);

(b)the Commissioner of Police of the Metropolis and every Assistant Commissioner of Police of the Metropolis;

(c)the Commissioner of Police for the City of London;

(d)the chief constable of every police force maintained under or by virtue of section 1 of the M36Police (Scotland) Act 1967 (police forces for areas in Scotland);

(e)the Chief Constable of the Royal Ulster Constabulary and the Deputy Chief Constable of the Royal Ulster Constabulary;

(f)the Chief Constable of the Ministry of Defence Police;

(g)the Provost Marshal of the [F71Royal Navy Police]F71 ;

(h)the Provost Marshal of the Royal Military Police;

(i)the Provost Marshal of the Royal Air Force Police;

(j)the Chief Constable of the British Transport Police;

[F72(k)the Director General of the Serious Organised Crime Agency and any member of the staff of that Agency who is designated for the purposes of this paragraph by that Director General;]

[F73F72(m)an officer of Revenue and Customs who is a senior official and who is designated for the purposes of this paragraph by the Commissioners for Her Majesty's Revenue and Customs;]

F73(n)the chairman of the OFT.

Annotations:

Amendments (Textual)

Modifications etc. (not altering text)

C31S. 32 modified (S.) (14.12.2000) by S.I. 2000/3253, arts. 1(1)(2), 2, Sch. 1 para. 4(1) (with art. 6)

C32S. 32: functions transferred to the Scottish Ministers (15.12.2000) by virtue of S.I. 2000/3253 arts. 1(1)(3), 3, Sch. 2 (with art. 6)

Marginal Citations

Police and [F74Revenue and Customs]F74 authorisationsE+W+S+N.I.

Annotations:

Amendments (Textual)

F74Words in the cross-heading substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 11; S.I. 2008/219, art. 2(b)

330 Rules for grant of authorisations.E+W+S+N.I.

(1)A person who is a designated person for the purposes of section 28 or 29 by reference to his office, rank or position with a police forceF75... shall not grant an authorisation under that section except on an application made by a member of the same force F76...[F77 (subject to subsections (1ZB) and (1ZE))]F77.

[F78(1ZA)Subsection (1ZB) applies if the chief officer of police of a police force (“the authorising force”) has made an agreement under section 23(1) of the Police Act 1996 with the chief office of police of one or more other police forces.

(1ZB)A person who is a designated person for the purposes of section 28 or 29 by reference to an office, rank or position with the authorising force may grant an authorisation under that section on an application made by a member of a collaborative force.

(1ZC)For the purposes of subsection (1ZB) a police force is a collaborative force if—

(a)its chief officer of police is a party to the agreement mentioned in subsection (1ZA); and

(b)its members are permitted by the terms of the agreement to make applications for authorisations under section 28 or 29 to a person who is a designated person for the purposes of that section by reference to an office, rank or position with the authorising force.

(1ZD)Subsection (1ZE) applies if the chief constable of a Scottish police force (“the Scottish authorising force”) has made an agreement under section 12(1) of the Police (Scotland) Act 1967 with the chief constable of one or more other Scottish police forces.

(1ZE)A person who is a designated person for the purposes of section 28 or 29 by reference to an office, rank or position with the Scottish authorising force may grant an authorisation under that section on an application made by a member of a collaborative force.

(1ZF)For the purposes of subsection (1ZE) a Scottish police force is a collaborative force if—

(a)its chief constable is a party to the agreement mentioned in subsection (1ZD); and

(b)its members are permitted by the terms of the agreement to make applications for authorisations under section 28 or 29 to a person who is a designated person for the purposes of that section by reference to an office, rank or position with the Scottish authorising force.]

[F79F78(1A)A person who is a designated person for the purposes of section 28 or 29 by reference to his office or position with the Serious Organised Crime Agency shall not grant an authorisation under that section except on an application made by a member of the staff of the Agency.]

[F80F79(1B)A person who is a designated person for the purposes of section 28 or 29 by reference to his office, rank or position with the Scottish Crime and Drug Enforcement Agency shall not grant an authorisation under that section except on an application made by a police member of the Agency.]

[F81F80(2)A person who is a designated person for the purposes of section 28 or 29 by reference to office, rank or position in Her Majesty's Revenue and Customs shall not grant an authorisation under that section except on an application made by an officer of Revenue and Customs.]

F81(3)[F82Subject to subsections (3ZB) and (3ZE),]F82 A person who is a senior authorising officer by reference to a police force F83... shall not grant an authorisation for the carrying out of intrusive surveillance except—

(a)on an application made by a member of the same force F84... ; and

(b)in the case of an authorisation for the carrying out of intrusive surveillance in relation to any residential premises, where those premises are in the area of operation of that force F84... .

[F85(3A)The Director General of the Serious Organised Crime Agency or a person designated for the purposes of section 32(6)(k) by that Director General shall not grant an authorisation for the carrying out of intrusive surveillance except on an application made by a member of the staff of the Agency.]

[F86F85(3ZA)Subsection (3ZB) applies if—

(a)the chief officer of police of a police force (“the surveillance authorising force”) has made an agreement under section 23(1) of the Police Act 1996 with the chief office of police of one or more other police forces; and

(b)an application for an authorisation for the carrying out of intrusive surveillance is made by a member of a collaborative force.

(3ZB)A person who is a senior authorising officer by reference to the surveillance authorising force may—

(a)grant the authorisation;

(b)in a case where the authorisation is for the carrying out of intrusive surveillance in relation to any residential premises, grant the authorisation only in relation to premises in the area which is—

(i)the area of operation of a collaborative force; and

(ii)specified in relation to members of that force in the agreement mentioned in subsection (3ZA).

(3ZC)For the purposes of subsections (3ZA) and (3ZB) a police force is a collaborative force if—

(a)its chief officer of police is a party to the agreement mentioned in subsection (3ZA); and

(b)its members are permitted by the terms of the agreement to make applications for authorisations for the carrying out of intrusive surveillance to a person who is a senior authorising officer by reference to the surveillance authorising force.

(3ZD)Subsection (3ZE) applies if—

(a)the chief constable of a Scottish police force (“the Scottish surveillance authorising force”) has made an agreement under section 12(1) of the Police (Scotland) Act 1967 with the chief constable of one or more other Scottish police forces; and

(b)an application for an authorisation for the carrying out of intrusive surveillance is made by a member of a collaborative force.

(3ZE)A person who is a senior authorising officer by reference to the Scottish surveillance authorising force may—

(a)grant the authorisation;

(b)in a case where the authorisation is for the carrying out of intrusive surveillance in relation to any residential premises, grant the authorisation only in relation to premises in the area which is—

(i)the area of operation of a collaborative force; and

(ii)specified in relation to members of that force in the agreement mentioned in subsection (3ZD).

(3ZF)For the purposes of subsections (3ZD) and (3ZE) a Scottish police force is a collaborative force if—

(a)its chief constable is a party to the agreement mentioned in subsection (3ZD); and

(b)its members are permitted by the terms of the agreement to make applications for authorisations for the carrying out of intrusive surveillance to a person who is a senior authorising officer by reference to the Scottish surveillance authorising force.]

[F87F86(4)A person who is a senior authorising officer by virtue of a designation by the Commissioners for Her Majesty's Revenue and Customs shall not grant an authorisation for the carrying out of intrusive surveillance except on an application made by an officer of Revenue and Customs.]

[F88F87(4A)The chairman of the OFT shall not grant an authorisation for the carrying out of intrusive surveillance except on an application made by an officer of the OFT.]

(5)A single authorisation may combine both—

(a)an authorisation granted under this Part by, or on the application of, an individual who is a member of a police force, [F89a member of the staff of the Serious Organised Crime Agency [F90or a member of the Scottish Crime and Drug Enforcement Agency]F90 ,]F89 or who is [F91an officer of Revenue and CustomsF91][F92or the chairman or an officer of the OFT]; and

(b)an authorisation given by, or on the application of, that individual under Part III of the M37Police Act 1997;

but the provisions of this Act or that Act that are applicable in the case of each of the authorisations shall apply separately in relation to the part of the combined authorisation to which they are applicable.

[F93(5A)In subsections (1ZA) to (1ZC) and (3ZA) to (3ZC) a reference to a police force is to the following—

(a)any police force maintained under section 2 of the Police Act 1996 (police forces in England and Wales outside London);

(b)the metropolitan police force; and

(c)the City of London police force.

(5B)In subsections (1ZD) to (1ZF) and (3ZD) to (3ZF) a reference to a Scottish police force is to a police force maintained under or by virtue of section 1 of the Police (Scotland) Act 1967.]

F93(6)For the purposes of this section—

(a)the area of operation of a police force maintained under section 2 of the M38Police Act 1996, of the metropolitan police force, of the City of London police force or of a police force maintained under or by virtue of section 1 of the M39Police (Scotland) Act 1967 is the area for which that force is maintained;

(b)the area of operation of the Royal Ulster Constabulary is Northern Ireland;

(c)residential premises are in the area of operation of the Ministry of Defence Police if they are premises where the members of that police force, under section 2 of the M40Ministry of Defence Police Act 1987, have the powers and privileges of a constable;

(d)residential premises are in the area of operation of the [F94Royal Navy Police]F94 the Royal Military Police or the Royal Air Force Police if they are premises owned or occupied by, or used for residential purposes by, a person subject to service discipline ;

(e)the area of operation of the British Transport Police F95... is the United Kingdom;

(f)F96. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

and references in this section to the United Kingdom or to any part or area of the United Kingdom include any adjacent waters within the seaward limits of the territorial waters of the United Kingdom.

[F97(7)In subsection (6) “subject to service law” and “civilian subject to service discipline” have the same meanings as in the Armed Forces Act 2006.F97]

Annotations:

Amendments (Textual)

F92Words in s. 33(5)(a) inserted (20.6.2003) by 2002 c. 40, ss. 199(4), 279; S.I. 2003/1397, art. 2(1), Sch.

F97S. 33(7) substituted (28.3.2009 for certain purposes otherwise 31.10.2009) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 171(3); S.I. 2009/812, art. 3 (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

Marginal Citations

34 Grant of authorisations in the senior officer’s absence.E+W+S+N.I.

(1)This section applies in the case of an application for an authorisation for the carrying out of intrusive surveillance where—

(a)the application is one made by a member of a police force, [F98a member of the staff of the Serious Organised Crime Agency]F98 or by [F99an officer of the OFT or][F100an officer of Revenue and Customs;]F100 and

(b)the case is urgent.

(2)If —

(a)it is not reasonably practicable, having regard to the urgency of the case, for the application to be considered by any person who is a senior authorising officer by reference to the force [F101or Agency]F101 in question or, as the case may be, [F102as chairman of the OFT or]by virtue of a designation by [F103the Commissioners for Her Majesty's Revenue and Customs,]F103 and

(b)it also not reasonably practicable, having regard to the urgency of the case, for the application to be considered by a person (if there is one) who is entitled, as a designated deputy of a senior authorising officer, to exercise the functions in relation to that application of such an officer,

the application may be made to and considered by any person who is entitled under subsection (4) to act for any senior authorising officer who would have been entitled to consider the application.

(3)A person who considers an application under subsection (1) shall have the same power to grant an authorisation as the person for whom he is entitled to act.

(4)For the purposes of this section—

(a)a person is entitled to act for the chief constable of a police force maintained under section 2 of the M41Police Act 1996 if he holds the rank of assistant chief constable in that force;

(b)a person is entitled to act for the Commissioner of Police of the Metropolis, or for an Assistant Commissioner of Police of the Metropolis, if he holds the rank of commander in the metropolitan police force;

(c)a person is entitled to act for the Commissioner of Police for the City of London if he holds the rank of commander in the City of London police force;

(d)a person is entitled to act for the chief constable of a police force maintained under or by virtue of section 1 of the M42Police (Scotland) Act 1967 if he holds the rank of assistant chief constable in that force;

(e)a person is entitled to act for the Chief Constable of the Royal Ulster Constabulary, or for the Deputy Chief Constable of the Royal Ulster Constabulary, if he holds the rank of assistant chief constable in the Royal Ulster Constabulary;

(f)a person is entitled to act for the Chief Constable of the Ministry of Defence Police if he holds the rank of deputy or assistant chief constable in that force;

(g)a person is entitled to act for the Provost Marshal of the [F104Royal Navy Police]F104 if he holds the position of assistant Provost Marshal in [F105that force]F105 ;

(h)a person is entitled to act for the Provost Marshal of the Royal Military Police or the Provost Marshal of the Royal Air Force Police if he holds the position of deputy Provost Marshal in the police force in question;

(i)a person is entitled to act for the Chief Constable of the British Transport Police if he holds the rank of deputy or assistant chief constable in that force;

[F106(j)a person is entitled to act for the Director General of the Serious Organised Crime Agency if he is a person designated for the purposes of this paragraph by that Director General as a person entitled so to act in an urgent case;]

F106(l)a person is entitled to act for a person who is a senior authorising officer by virtue of a designation by [F107the Commissioners for Her Majesty's Revenue and Customs,]F107 if he is [F108a senior official]F108 designated for the purposes of this paragraph by those Commissioners as a person entitled so to act in an urgent case.

[F109(m)a person is entitled to act for the chairman of the OFT if he is an officer of the OFT designated by it for the purposes of this paragraph as a person entitled so to act in an urgent case.]

(5)F110. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)In this section “designated deputy”—

[F111(a)in relation to the chief constable for a police force in England and Wales, means—

(i)the person who is the appropriate deputy chief constable for the purposes of section 12A(1) of the Police Act 1996, or

(ii)a person holding the rank of assistant chief constable who is designated to act under section 12A(2) of that Act;

(aa)in relation to the chief constable for a police force in Scotland, means—

(i)a person holding the rank of deputy chief constable and, where there is more than one person in the police force who holds that rank, who is designated as the officer having the powers and duties conferred on a deputy chief constable by section 5A(1) of the Police (Scotland) Act 1967, or

(ii)a person holding the rank of assistant chief constable who is designated to act under section 5A(2) of that Act;]

F111(b)in relation to the Commissioner of Police for the City of London, means a person authorised to act under section 25 of the M43City of London Police Act 1839;

(c)F112. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual)

Marginal Citations

35 Notification of authorisations for intrusive surveillance.E+W+S+N.I.

(1)Where a person grants or cancels a [F113police, SOCA, [F114Revenue and CustomsF114]][F115F113or OFT] authorisation for the carrying out of intrusive surveillance, he shall give notice that he has done so to an ordinary Surveillance Commissioner.

(2)A notice given for the purposes of subsection (1)—

(a)must be given in writing as soon as reasonably practicable after the grant or, as the case may be, cancellation of the authorisation to which it relates;

(b)must be given in accordance with any such arrangements made for the purposes of this paragraph by the Chief Surveillance Commissioner as are for the time being in force; and

(c)must specify such matters as the Secretary of State may by order prescribe.

(3)A notice under this section of the grant of an authorisation shall, as the case may be, either—

(a)state that the approval of a Surveillance Commissioner is required by section 36 before the grant of the authorisation will take effect; or

(b)state that the case is one of urgency and set out the grounds on which the case is believed to be one of urgency.

(4)Where a notice for the purposes of subsection (1) of the grant of an authorisation has been received by an ordinary Surveillance Commissioner, he shall, as soon as practicable—

(a)scrutinise the authorisation; and

(b)in a case where notice has been given in accordance with subsection (3)(a), decide whether or not to approve the authorisation.

(5)Subject to subsection (6), the Secretary of State shall not make an order under subsection (2)(c) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(6)Subsection (5) does not apply in the case of the order made on the first occasion on which the Secretary of State exercises his power to make an order under subsection (2)(c).

(7)The order made on that occasion shall cease to have effect at the end of the period of forty days beginning with the day on which it was made unless, before the end of that period, it has been approved by a resolution of each House of Parliament.

(8)For the purposes of subsection (7)—

(a)the order’s ceasing to have effect shall be without prejudice to anything previously done or to the making of a new order; and

(b)in reckoning the period of forty days no account shall be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

(9)Any notice that is required by any provision of this section to be given in writing may be given, instead, by being transmitted by electronic means.

(10)In this section references to a [F116police, SOCA, [F117Revenue and CustomsF117]][F115F116or OFT] authorisation are references to an authorisation granted by—

(a)a person who is a senior authorising officer by reference to a police force [F118or the Serious Organised Crime Agency]F118 ;

(b)a person who is a senior authorising officer by virtue of a designation by [F119the Commissioners for Her Majesty's Revenue and Customs;F119]F120...

[F121(ba)the chairman of the OFT; or]

(c)a person who for the purposes of section 34 is entitled to act for a person falling within paragraph (a) or for a person falling within paragraph (b) [F122or for a person falling within paragraph (ba).].

Annotations:

Amendments (Textual)

F115Words in s. 35(1)(10) substituted (20.6.2003) by 2002 c. 40, ss. 199(6)(a), 279; S.I. 2003/1397, art. 2(1), Sch.

F120Word in s. 35(10)(b) repealed (20.6.2003) by 2002 c. 40, ss. 278, 279, Sch. 26; S.I. 2003/1397, art. 2(1), Sch. (with art. 10)

36 Approval required for authorisations to take effect.E+W+S+N.I.

(1)This section applies where an authorisation for the carrying out of intrusive surveillance has been granted on the application of—

(a)a member of a police force;

[F123(b)a member of the staff of the Serious Organised Crime Agency;]

[F124F123(d)an officer of Revenue and Customs;]

F124(e)an officer of the OFT.

(2)Subject to subsection (3), the authorisation shall not take effect until such time (if any) as—

(a)the grant of the authorisation has been approved by an ordinary Surveillance Commissioner; and

(b)written notice of the Commissioner’s decision to approve the grant of the authorisation has been given, in accordance with subsection (4), to the person who granted the authorisation.

(3)Where the person who grants the authorisation—

(a)believes that the case is one of urgency, and

(b)gives notice in accordance with section 35(3)(b),

subsection (2) shall not apply to the authorisation, and the authorisation shall have effect from the time of its grant.

(4)Where subsection (2) applies to the authorisation—

(a)a Surveillance Commissioner shall give his approval under this section to the authorisation if, and only if, he is satisfied that there are reasonable grounds for believing that the requirements of section 32(2)(a) and (b) are satisfied in the case of the authorisation; and

(b)a Surveillance Commissioner who makes a decision as to whether or not the authorisation should be approved shall, as soon as reasonably practicable after making that decision, give written notice of his decision to the person who granted the authorisation.

(5)If an ordinary Surveillance Commissioner decides not to approve an authorisation to which subsection (2) applies, he shall make a report of his findings to the most senior relevant person.

(6)In this section “the most senior relevant person” means—

(a)where the authorisation was granted by the senior authorising officer with any police force who is not someone’s deputy, that senior authorising officer;

(b)where the authorisation was granted by the Director General of the [F125Serious Organised Crime Agency,]F125 that Director General;

(c)where the authorisation was granted by a senior authorising officer with a police force who is someone’s deputy, the senior authorising officer whose deputy granted the authorisation;

[F126(d)where the authorisation was granted by a person designated for the purposes of section 32(6)(k), or by a person entitled to act for the Director General of the Serious Organised Crime Agency by virtue of section 34(4)(j), that Director General;]

F126(f)where the authorisation was granted by a person entitled to act for a senior authorising officer under section 34(4)(a) to (i), the senior authorising officer in the force in question who is not someone’s deputy; [F127and]

[F128(g)where the authorisation was granted by an officer of Revenue and Customs, the officer of Revenue and Customs for the time being designated for the purposes of this paragraph by a written notice given to the Chief Surveillance Commissioner by the Commissioners for Her Majesty's Revenue and Customs;]

F128(h)where the authorisation was granted by the chairman of the OFT or a person entitled to act for him by virtue of section 34(4)(m), that chairman.

(7)The references in subsection (6) to a person’s deputy are references to the following—

(a)in relation to—

(i)a chief constable of a police force maintained under section 2 of the M44Police Act 1996,

(ii)the Commissioner of Police for the City of London, or

(iii)a chief constable of a police force maintained under or by virtue of section 1 of the M45Police (Scotland) Act 1967,

to his designated deputy;

(b)in relation to the Commissioner of Police of the Metropolis, to an Assistant Commissioner of Police of the Metropolis; and

(c)in relation to the Chief Constable of the Royal Ulster Constabulary, to the Deputy Chief Constable of the Royal Ulster Constabulary;

and in this subsection and that subsection “designated deputy” has the same meaning as in section 34.

(8)Any notice that is required by any provision of this section to be given in writing may be given, instead, by being transmitted by electronic means.

37 Quashing of police and [F129Revenue and Customs]F129 authorisations etc.E+W+S+N.I.

(1)This section applies where an authorisation for the carrying out of intrusive surveillance has been granted on the application of—

(a)a member of a police force;

[F130(b)a member of the staff of the Serious Organised Crime Agency;]

[F131F130(d)an officer of Revenue and Customs;]

F131(e)an officer of the OFT.

(2)Where an ordinary Surveillance Commissioner is at any time satisfied that, at the time when the authorisation was granted or at any time when it was renewed, there were no reasonable grounds for believing that the requirements of section 32(2)(a) and (b) were satisfied, he may quash the authorisation with effect, as he thinks fit, from the time of the grant of the authorisation or from the time of any renewal of the authorisation.

(3)If an ordinary Surveillance Commissioner is satisfied at any time while the authorisation is in force that there are no longer any reasonable grounds for believing that the requirements of section 32(2)(a) and (b) are satisfied in relation to the authorisation, he may cancel the authorisation with effect from such time as appears to him to be the time from which those requirements ceased to be so satisfied.

(4)Where, in the case of any authorisation of which notice has been given in accordance with section 35(3)(b), an ordinary Surveillance Commissioner is at any time satisfied that, at the time of the grant or renewal of the authorisation to which that notice related, there were no reasonable grounds for believing that the case was one of urgency, he may quash the authorisation with effect, as he thinks fit, from the time of the grant of the authorisation or from the time of any renewal of the authorisatio

(5)Subject to subsection (7), where an ordinary Surveillance Commissioner quashes an authorisation under this section, he may order the destruction of any records relating wholly or partly to information obtained by the authorised conduct after the time from which his decision takes effect.

(6)Subject to subsection (7), where—

(a)an authorisation has ceased to have effect (otherwise than by virtue of subsection (2) or (4)), and

(b)an ordinary Surveillance Commissioner is satisfied that there was a time while the authorisation was in force when there were no reasonable grounds for believing that the requirements of section 32(2)(a) and (b) continued to be satisfied in relation to the authorisation,

he may order the destruction of any records relating, wholly or partly, to information obtained at such a time by the authorised conduct.

(7)No order shall be made under this section for the destruction of any records required for pending criminal or civil proceedings.

(8)Where an ordinary Surveillance Commissioner exercises a power conferred by this section, he shall, as soon as reasonably practicable, make a report of his exercise of that power, and of his reasons for doing so—

(a)to the most senior relevant person (within the meaning of section 36); and

(b)to the Chief Surveillance Commissioner.

(9)Where an order for the destruction of records is made under this section, the order shall not become operative until such time (if any) as—

(a)the period for appealing against the decision to make the order has expired; and

(b)any appeal brought within that period has been dismissed by the Chief Surveillance Commissioner.

(10)No notice shall be required to be given under section 35(1) in the case of a cancellation under subsection (3) of this section.

38 Appeals against decisions by Surveillance Commissioners.E+W+S+N.I.

(1)Any senior authorising officer may appeal to the Chief Surveillance Commissioner against any of the following—

(a)any refusal of an ordinary Surveillance Commissioner to approve an authorisation for the carrying out of intrusive surveillance;

(b)any decision of such a Commissioner to quash or cancel such an authorisation;

(c)any decision of such a Commissioner to make an order under section 37 for the destruction of records.

(2)In the case of an authorisation granted by the designated deputy of a senior authorising office or by a person who for the purposes of section 34 is entitled to act for a senior authorising officer, that designated deputy or person shall also be entitled to appeal under this section.

(3)An appeal under this section must be brought within the period of seven days beginning with the day on which the refusal or decision appealed against is reported to the appellant.

(4)Subject to subsection (5), the Chief Surveillance Commissioner, on an appeal under this section, shall allow the appeal if—

(a)he is satisfied that there were reasonable grounds for believing that the requirements of section 32(2)(a) and (b) were satisfied in relation to the authorisation at the time in question; and

(b)he is not satisfied that the authorisation is one of which notice was given in accordance with section 35(3)(b) without there being any reasonable grounds for believing that the case was one of urgency.

(5)If, on an appeal falling within subsection (1)(b), the Chief Surveillance Commissioner—

(a)is satisfied that grounds exist which justify the quashing or cancellation under section 37 of the authorisation in question, but

(b)considers that the authorisation should have been quashed or cancelled from a different time from that from which it was quashed or cancelled by the ordinary Surveillance Commissioner against whose decision the appeal is brought,

he may modify that Commissioner’s decision to quash or cancel the authorisation, and any related decision for the destruction of records, so as to give effect to the decision under section 37 that he considers should have been made.

(6)Where, on an appeal under this section against a decision to quash or cancel an authorisation, the Chief Surveillance Commissioner allows the appeal he shall also quash any related order for the destruction of records relating to information obtained by the authorised conduct.

(7)In this section “designated deputy” has the same meaning as in section 34.

39 Appeals to the Chief Surveillance Commissioner: supplementary.E+W+S+N.I.

(1)Where the Chief Surveillance Commissioner has determined an appeal under section 38, he shall give notice of his determination to both—

(a)the person by whom the appeal was brought; and

(b)the ordinary Surveillance Commissioner whose decision was appealed against.

(2)Where the determination of the Chief Surveillance Commissioner on an appeal under section 38 is a determination to dismiss the appeal, the Chief Surveillance Commissioner shall make a report of his findings—

(a)to the persons mentioned in subsection (1); and

(b)to the Prime Minister.

(3)Subsections (3) and (4) of section 107 of the M46Police Act 1997 (reports to be laid before Parliament and exclusion of matters from the report) apply in relation to any report to the Prime Minister under subsection (2) of this section as they apply in relation to any report under subsection (2) of that section.

(4)Subject to subsection (2) of this section, the Chief Surveillance Commissioner shall not give any reasons for any determination of his on an appeal under section 38.

Annotations:

Marginal Citations

40 Information to be provided to Surveillance Commissioners.E+W+S+N.I.

It shall be the duty of—

(a)every member of a police force,

[F132(b)every member of the staff of the Serious Organised Crime Agency,]

[F133F132(d)every officer of Revenue and Customs,]

F133(e)every officer of the OFT,

to comply with any request of a Surveillance Commissioner for documents or information required by that Commissioner for the purpose of enabling him to carry out the functions of such a Commissioner under sections 35 to 39.

Other authorisationsE+W+S+N.I.

41 Secretary of State authorisations.E+W+S+N.I.

(1)The Secretary of State shall not grant an authorisation for the carrying out of intrusive surveillance except on an application made by—

(a)a member of any of the intelligence services;

(b)an official of the Ministry of Defence;

(c)a member of Her Majesty’s forces;

(d)an individual holding an office, rank or position with any such public authority as may be designated for the purposes of this section as an authority whose activities may require the carrying out of intrusive surveillance.

(2)Section 32 shall have effect in relation to the grant of an authorisation by the Secretary of State on the application of an official of the Ministry of Defence, or of a member of Her Majesty’s forces, as if the only matters mentioned in subsection (3) of that section were—

(a)the interests of national security; and

(b)the purpose of preventing or detecting serious crime.

(3)The designation of any public authority for the purposes of this section shall be by order made by the Secretary of State.

(4)The Secretary of State may by order provide, in relation to any public authority, that an application for an authorisation for the carrying out of intrusive surveillance may be made by an individual holding an office, rank or position with that authority only where his office, rank or position is one prescribed by the order.

(5)The Secretary of State may by order impose restrictions—

(a)on the authorisations for the carrying out of intrusive surveillance that may be granted on the application of an individual holding an office, rank or position with any public authority designated for the purposes of this section; and

(b)on the circumstances in which, or the purposes for which, such authorisations may be granted on such an application.

(6)The Secretary of State shall not make a designation under subsection (3) unless a draft of the order containing the designation has been laid before Parliament and approved by a resolution of each House.

(7)References in this section to a member of Her Majesty’s forces do not include references to any member of Her Majesty’s forces who is a member of a police force by virtue of his service with the [F134Royal Navy Police]F134 , the Royal Military Police or the Royal Air Force Police.

Annotations:

Amendments (Textual)

42 Intelligence services authorisations.E+W+S+N.I.

(1)The grant by the Secretary of State [F135or, the Scottish Ministers (by virtue of provision under section 63 of the Scotland Act 1998)] on the application of a member of one of the intelligence services of any authorisation under this Part must be made by the issue of a warrant.

(2)A single warrant issued by the Secretary of State [F135or, the Scottish Ministers (by virtue of provision under s. 63 of the Scotland Act 1998)]may combine both—

(a)an authorisation under this Part; and

(b)an intelligence services warrant;

but the provisions of this Act or the M47Intelligence Services Act 1994 that are applicable in the case of the authorisation under this Part or the intelligence services warrant shall apply separately in relation to the part of the combined warrant to which they are applicable.

(3)Intrusive surveillance in relation to any premises or vehicle in the British Islands shall be capable of being authorised by a warrant issued under this Part on the application of a member of the Secret Intelligence Service or GCHQ only if the authorisation contained in the warrant is one satisfying the requirements of section 32(2)(a) otherwise than in connection with any functions of that intelligence service in support of the prevention or detection of serious crime.

(4)Subject to subsection (5), the functions of the Security Service shall include acting on behalf of the Secret Intelligence Service or GCHQ in relation to—

(a)the application for and grant of any authorisation under this Part in connection with any matter within the functions of the Secret Intelligence Service or GCHQ; and

(b)the carrying out, in connection with any such matter, of any conduct authorised by such an authorisation.

(5)Nothing in subsection (4) shall authorise the doing of anything by one intelligence service on behalf of another unless—

(a)it is something which either the other service or a member of the other service has power to do; and

(b)it is done otherwise than in connection with functions of the other service in support of the prevention or detection of serious crime.

(6)In this section “intelligence services warrant” means a warrant under section 5 of the M48Intelligence Services Act 1994.

Annotations:

Amendments (Textual)

F135Words in s 42(1)(2) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 7(a)(b) (with art. 6)

Modifications etc. (not altering text)

C33S. 42 modified (S.) (14.12.2000) by S.I. 2000/3253, arts. 1(1)(2), 2, Sch. 1 para. 4(1) (with art. 6)

C34S. 42: functions transferred to the Scottish Ministers (S.) (15.12.2000) by virtue of S.I. 2000/3253, arts. 1(1)(3), 3, Sch. 2 (with art. 6)

Marginal Citations

Grant, renewal and duration of authorisationsE+W+S+N.I.

43 General rules about grant, renewal and duration.E+W+S+N.I.

(1)An authorisation under this Part—

(a)may be granted or renewed orally in any urgent case in which the entitlement to act of the person granting or renewing it is not confined to urgent cases; and

(b)in any other case, must be in writing.

(2)A single authorisation may combine two or more different authorisations under this Part; but the provisions of this Act that are applicable in the case of each of the authorisations shall apply separately in relation to the part of the combined authorisation to which they are applicable.

(3)Subject to subsections (4) and (8), an authorisation under this Part shall cease to have effect at the end of the following period—

(a)in the case of an authorisation which—

(i)has not been renewed and was granted either orally or by a person whose entitlement to act is confined to urgent cases, or

(ii)was last renewed either orally or by such a person,

the period of seventy-two hours beginning with the time when the grant of the authorisation or, as the case may be, its latest renewal takes effect;

(b)in a case not falling within paragraph (a) in which the authorisation is for the conduct or the use of a covert human intelligence source, the period of twelve months beginning with the day on which the grant of the authorisation or, as the case may be, its latest renewal takes effect; and

(c)in any case not falling within paragraph (a) or (b), the period of three months beginning with the day on which the grant of the authorisation or, as the case may be, its latest renewal takes effect.

(4)Subject to subsection (6), an authorisation under this Part may be renewed, at any time before the time at which it ceases to have effect, by any person who would be entitled to grant a new authorisation in the same terms.

(5)Sections 28 to 41 shall have effect in relation to the renewal of an authorisation under this Part as if references to the grant of an authorisation included references to its renewal.

(6)A person shall not renew an authorisation for the conduct or the use of a covert human intelligence source, unless he—

(a)is satisfied that a review has been carried out of the matters mentioned in subsection (7); and

(b)has, for the purpose of deciding whether he should renew the authorisation, considered the results of that review.

(7)The matters mentioned in subsection (6) are—

(a)the use made of the source in the period since the grant or, as the case may be, latest renewal of the authorisation; and

(b)the tasks given to the source during that period and the information obtained from the conduct or the use of the source.

(8)The Secretary of State may by order provide in relation to authorisations of such descriptions as may be specified in the order that subsection (3) is to have effect as if the period at the end of which an authorisation of a description so specified is to cease to have effect were such period shorter than that provided for by that subsection as may be fixed by or determined in accordance with that order.

(9)References in this section to the time at which, or the day on which, the grant or renewal of an authorisation takes effect are references—

(a)in the case of the grant of an authorisation to which paragraph (c) does not apply, to the time at which or, as the case may be, day on which the authorisation is granted;

(b)in the case of the renewal of an authorisation to which paragraph (c) does not apply, to the time at which or, as the case may be, day on which the authorisation would have ceased to have effect but for the renewal; and

(c)in the case of any grant or renewal that takes effect under subsection (2) of section 36 at a time or on a day later than that given by paragraph (a) or (b), to the time at which or, as the case may be, day on which the grant or renewal takes effect in accordance with that subsection.

(10)In relation to any authorisation granted by a member of any of the intelligence services, and in relation to any authorisation contained in a warrant issued by the Secretary of State on the application of a member of any of the intelligence services, this section has effect subject to the provisions of section 44.

Annotations:

Modifications etc. (not altering text)

C35S. 43(3) modified (6.11.2000) by S.I. 2000/2793, art. 6

S.43 applied (with modifications) (16.3.2001) by S.I. 2001/1057, art. 4

44 Special rules for intelligence services authorisations.E+W+S+N.I.

(1)Subject to subsection (2), a warrant containing an authorisation for the carrying out of intrusive surveillance—

(a)shall not be issued on the application of a member of any of the intelligence services, and

(b)if so issued shall not be renewed,

except under the hand of the Secretary of State [F136or, in the case of a warrant issued by the Scottish Ministers(by virtue of provision made under section 63 of the Scotland Act 1998), a member of the Scottish Executive.]

(2)In an urgent case in which—

(a)an application for a warrant containing an authorisation for the carrying out of intrusive surveillance has been made by a member of any of the intelligence services, and

(b)the Secretary of State has himself [F137or the Scottish Ministers(by virtue of provision made under section 63 of the Scotland Act 1998) have themselves] expressly authorised the issue of the warrant in that case,

the warrant may be issued (but not renewed) under the hand of a senior official [F138 or as the case may be, a member of the staffof the Scottish Administration who is a member of the Senior Civil Service and is designated by the Scottish Ministers as a person under whose hand a warrant may be issued in such a case (in this section referred to as “a designated official”)]

(3)Subject to subsection (6), a warrant containing an authorisation for the carrying out of intrusive surveillance which—

(a)was issued, on the application of a member of any of the intelligence services, under the hand of a senior official [F139or, as the case may be, a designated official] and

(b)has not been renewed under the hand of the Secretary of State [F140or, in the case of a warrant issued by the Scottish Ministers (by virtue of provision made under section 3 of the Scotalnd Act 1998), a member of the Scottish Executive],

shall cease to have effect at the end of the second working day following the day of the issue of the warrant, instead of at the time provided for by section 43(3).

(4)Subject to subsections (3) and (6), where any warrant for the carrying out of intrusive surveillance which is issued or was last renewed on the application of a member of any of the intelligence services, the warrant (unless renewed or, as the case may be, renewed again) shall cease to have effect at the following time, instead of at the time provided for by section 43(3), namely—

(a)in the case of a warrant that has not been renewed, at the end of the period of six months beginning with the day on which it was issued; and

(b)in any other case, at the end of the period of six months beginning with the day on which it would have ceased to have effect if not renewed again.

(5)Subject to subsection (6), where—

(a)an authorisation for the carrying out of directed surveillance is granted by a member of any of the intelligence services, and

(b)the authorisation is renewed by an instrument endorsed under the hand of the person renewing the authorisation with a statement that the renewal is believed to be necessary on grounds falling within section 32(3)(a) or (c),

the authorisation (unless renewed again) shall cease to have effect at the end of the period of six months beginning with the day on which it would have ceased to have effect but for the renewal, instead of at the time provided for by section 43(3).

(6)The Secretary of State may by order provide in relation to authorisations of such descriptions as may be specified in the order that subsection (3), (4) or (5) is to have effect as if the period at the end of which an authorisation of a description so specified is to cease to have effect were such period shorter than that provided for by that subsection as may be fixed by or determined in accordance with that order.

(7)Notwithstanding anything in section 43(2), in a case in which there is a combined warrant containing both—

(a)an authorisation for the carrying out of intrusive surveillance, and

(b)an authorisation for the carrying out of directed surveillance,

the reference in subsection (4) of this section to a warrant for the carrying out of intrusive surveillance is a reference to the warrant so far as it confers both authorisations.

Annotations:

Amendments (Textual)

F136Words in s. 44(1) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 8(a) (with art. 6)

F137Words in s. 44(2) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 8(b)(i) (with art. 6)

F138Words inserted at the end of s. 44(2) (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 8(b)(ii) (with art. 6)

F139Words in s. 44(3)(a) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 8(c)(i) (with art. 6)

F140Words in s. 44(3)(b) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 8(c)(ii) (with art. 6)

Modifications etc. (not altering text)

C37S. 44(1)(2)(b) modified (S.) (14.12.2000) by S.I. 2000/3253, arts. 1(1)(2), 2, Sch. 1 para. 5 (with art. 6)

C38S. 44(1)(2)(b): functions transferred to the Scottish Ministers (S.) (15.12.2000) by virtue of S.I. 2000/3253, arts. 1(1)(3), 3, Sch. 2 (with art. 6)

45 Cancellation of authorisations.E+W+S+N.I.

(1)The person who granted or, as the case may be, last renewed an authorisation under this Part shall cancel it if—

(a)he is satisfied that the authorisation is one in relation to which the requirements of section 28(2)(a) and (b), 29(2)(a) and (b) or, as the case may be, 32(2)(a) and (b) are no longer satisfied; or

(b)in the case of an authorisation under section 29, he is satisfied that arrangements for the source’s case that satisfy the requirements mentioned in subsection (2)(c) of that section no longer exist.

(2)Where an authorisation under this Part was granted or, as the case may be, last renewed—

(a)by a person entitled to act for any other person, or

(b)by the deputy of any other person,

that other person shall cancel the authorisation if he is satisfied as to either of the matters mentioned in subsection (1).

(3)Where an authorisation under this Part was granted or, as the case may be, last renewed by a person whose deputy had power to grant it, that deputy shall cancel the authorisation if he is satisfied as to either of the matters mentioned in subsection (1).

(4)The Secretary of State may by regulations provide for the person by whom any duty imposed by this section is to be performed in a case in which it would otherwise fall on a person who is no longer available to perform it.

(5)Regulations under subsection (4) may provide for the person on whom the duty is to fall to be a person appointed in accordance with the regulations.

(6)The references in this section to a person’s deputy are references to the following—

(a) in relation to—

(i)a chief constable of a police force maintained under section 2 of the M49Police Act 1996,

(ii)the Commissioner of Police for the City of London, or

(iii)a chief constable of a police force maintained under or by virtue of section 1 of the M50Police (Scotland) Act 1967,

to his designated deputy;

(b)in relation to the Commissioner of Police of the Metropolis, to an Assistant Commissioner of Police of the Metropolis;F141...

(c)in relation to the Chief Constable of the Royal Ulster Constabulary, to the Deputy Chief Constable of the Royal Ulster Constabulary[F142; and

(ca)in relation to the Director General of the Scottish Crime and Drug Enforcement Agency, to the Deputy Director General of that Agency;]

F142(d)F143. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e)F143. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)In this section “designated deputy” has the same meaning as in section 34.

ScotlandE+W+S+N.I.

46 Restrictions on authorisations extending to Scotland.E+W+S+N.I.

(1)No person shall grant or renew an authorisation under this Part for the carrying out of any conduct if it appears to him—

(a)that the authorisation is not one for which this Part is the relevant statutory provision for all parts of the United Kingdom; and

(b)that all the conduct authorised by the grant or, as the case may be, renewal of the authorisation is likely to take place in Scotland.

(2) In relation to any authorisation, this Part is the relevant statutory provision for all parts of the United Kingdom in so far as it—

(a) is granted or renewed on the grounds that it is necessary in the interests of national security or in the interests of the economic well-being of the United Kingdom;

(b)is granted or renewed by or on the application of a person holding any office, rank or position with any of the public authorities specified in subsection (3);

(c)authorises conduct of a person holding an office, rank or position with any of the public authorities so specified;

(d)authorises conduct of an individual acting as a covert human intelligence source for the benefit of any of the public authorities so specified; or

(e)authorises conduct that is surveillance by virtue of section 48(4).

(3)The public authorities mentioned in subsection (2) are—

(a)each of the intelligence services;

(b)Her Majesty’s forces;

(c)the Ministry of Defence;

(d)the Ministry of Defence Police;

[F144(dza)the Civil Nuclear Constabulary;]

[F145F144(da)the OFT;]

[F146(db)the Serious Organised Crime Agency;]

[F147F146(e)the Commissioners for Her Majesty's Revenue and Customs;]

F147(f)the British Transport Police.

(4)For the purposes of so much of this Part as has effect in relation to any other public authority by virtue of—

(a)the fact that it is a public authority for the time being specified in Schedule 1, or

(b)an order under subsection (1)(d) of section 41 designating that authority for the purposes of that section,

the authorities specified in subsection (3) of this section shall be treated as including that authority to the extent that the Secretary of State by order directs that the authority is a relevant public authority or, as the case may be, is a designated authority for all parts of the United Kingdom.

Supplemental provision for Part IIE+W+S+N.I.

47 Power to extend or modify authorisation provisions.E+W+S+N.I.

(1)The Secretary of State may by order do one or both of the following—

(a)apply this Part, with such modifications as he thinks fit, to any such surveillance that is neither directed nor intrusive as may be described in the order;

(b)provide for any description of directed surveillance to be treated for the purposes of this Part as intrusive surveillance.

(2)No order shall be made under this section unless a draft of it has been laid before Parliament and approved by a resolution of each House.

48 Interpretation of Part II.E+W+S+N.I.

(1)In this Part—

(2)Subject to subsection (3), in this Part “surveillance” includes—

(a)monitoring, observing or listening to persons, their movements, their conversations or their other activities or communications;

(b)recording anything monitored, observed or listened to in the course of surveillance; and

(c)surveillance by or with the assistance of a surveillance device.

(3)References in this Part to surveillance do not include references to—

(a)any conduct of a covert human intelligence source for obtaining or recording (whether or not using a surveillance device) any information which is disclosed in the presence of the source;

(b)the use of a covert human intelligence source for so obtaining or recording information; or

(c)any such entry on or interference with property or with wireless telegraphy as would be unlawful unless authorised under—

(i)section 5 of the M51Intelligence Services Act 1994 (warrants for the intelligence services); or

(ii)Part III of the M52Police Act 1997 (powers of the police and of [F149officers of Revenue and Customs).F149]

(4)References in this Part to surveillance include references to the interception of a communication in the course of its transmission by means of a postal service or telecommunication system if, and only if—

(a)the communication is one sent by or intended for a person who has consented to the interception of communications sent by or to him; and

(b)there is no interception warrant authorising the interception.

(5)References in this Part to an individual holding an office or position with a public authority include references to any member, official or employee of that authority.

(6)For the purposes of this Part the activities of a covert human intelligence source which are to be taken as activities for the benefit of a particular public authority include any conduct of his as such a source which is in response to inducements or requests made by or on behalf of that authority.

(7)In subsection (1)—

(a)the reference to a person having the right to use a vehicle does not, in relation to a motor vehicle, include a reference to a person whose right to use the vehicle derives only from his having paid, or undertaken to pay, for the use of the vehicle and its driver for a particular journey; and

(b)the reference to premises occupied or used by any person for residential purposes or otherwise as living accommodation does not include a reference to so much of any premises as constitutes any common area to which he has or is allowed access in connection with his use or occupation of any accommodation.

(8)In this section—

Annotations:

Amendments (Textual)

F148Definition in s. 48(1) inserted (20.6.2003) by 2002 c. 40, ss. 199(11), 279; S.I. 2003/1397, art. 2(1), Sch.

Marginal Citations

Part IIIE+W+S+N.I. Investigation of electronic data protected by encryption etc.

Power to require disclosureE+W+S+N.I.

49 Notices requiring disclosure.E+W+S+N.I.

(1)This section applies where any protected information—

(a)has come into the possession of any person by means of the exercise of a statutory power to seize, detain, inspect, search or otherwise to interfere with documents or other property, or is likely to do so;

(b)has come into the possession of any person by means of the exercise of any statutory power to intercept communications, or is likely to do so;

(c)has come into the possession of any person by means of the exercise of any power conferred by an authorisation under section 22(3) [F150“, (3B) or (3F)”]F150 or under Part II, or as a result of the giving of a notice under section 22(4), or is likely to do so;

(d)has come into the possession of any person as a result of having been provided or disclosed in pursuance of any statutory duty (whether or not one arising as a result of a request for information), or is likely to do so; or

(e)has, by any other lawful means not involving the exercise of statutory powers, come into the possession of any of the intelligence services, the police [F151, SOCAF151][F152, SCDEA]F152 or [F153Her Majesty's Revenue and Customs]F153 , or is likely so to come into the possession of any of those services, the police [F151, SOCAF151][F152, SCDEA]F152 or [F153Her Majesty's Revenue and Customs]F153 .

(2)If any person with the appropriate permission under Schedule 2 believes, on reasonable grounds—

(a)that a key to the protected information is in the possession of any person,

(b)that the imposition of a disclosure requirement in respect of the protected information is—

(i)necessary on grounds falling within subsection (3), or

(ii)necessary for the purpose of securing the effective exercise or proper performance by any public authority of any statutory power or statutory duty,

(c)that the imposition of such a requirement is proportionate to what is sought to be achieved by its imposition, and

(d)that it is not reasonably practicable for the person with the appropriate permission to obtain possession of the protected information in an intelligible form without the giving of a notice under this section,

the person with that permission may, by notice to the person whom he believes to have possession of the key, impose a disclosure requirement in respect of the protected information.

(3)A disclosure requirement in respect of any protected information is necessary on grounds falling within this subsection if it is necessary—

(a)in the interests of national security;

(b)for the purpose of preventing or detecting crime; or

(c)in the interests of the economic well-being of the United Kingdom.

(4)A notice under this section imposing a disclosure requirement in respect of any protected information—

(a)must be given in writing or (if not in writing) must be given in a manner that produces a record of its having been given;

(b)must describe the protected information to which the notice relates;

(c)must specify the matters falling within subsection (2)(b)(i) or (ii) by reference to which the notice is given;

(d)must specify the office, rank or position held by the person giving it;

(e)must specify the office, rank or position of the person who for the purposes of Schedule 2 granted permission for the giving of the notice or (if the person giving the notice was entitled to give it without another person’s permission) must set out the circumstances in which that entitlement arose;

(f)must specify the time by which the notice is to be complied with; and

(g)must set out the disclosure that is required by the notice and the form and manner in which it is to be made;

and the time specified for the purposes of paragraph (f) must allow a period for compliance which is reasonable in all the circumstances.

(5)Where it appears to a person with the appropriate permission—

(a)that more than one person is in possession of the key to any protected information,

(b)that any of those persons is in possession of that key in his capacity as an officer or employee of any body corporate, and

(c)that another of those persons is the body corporate itself or another officer or employee of the body corporate,

a notice under this section shall not be given, by reference to his possession of the key, to any officer or employee of the body corporate unless he is a senior officer of the body corporate or it appears to the person giving the notice that there is no senior officer of the body corporate and (in the case of an employee) no more senior employee of the body corporate to whom it is reasonably practicable to give the notice.

(6)Where it appears to a person with the appropriate permission—

(a)that more than one person is in possession of the key to any protected information,

(b)that any of those persons is in possession of that key in his capacity as an employee of a firm, and

(c)that another of those persons is the firm itself or a partner of the firm,

a notice under this section shall not be given, by reference to his possession of the key, to any employee of the firm unless it appears to the person giving the notice that there is neither a partner of the firm nor a more senior employee of the firm to whom it is reasonably practicable to give the notice.

(7)Subsections (5) and (6) shall not apply to the extent that there are special circumstances of the case that mean that the purposes for which the notice is given would be defeated, in whole or in part, if the notice were given to the person to whom it would otherwise be required to be given by those subsections.

(8)A notice under this section shall not require the making of any disclosure to any person other than—

(a)the person giving the notice; or

(b)such other person as may be specified in or otherwise identified by, or in accordance with, the provisions of the notice.

(9)A notice under this section shall not require the disclosure of any key which—

(a)is intended to be used for the purpose only of generating electronic signatures; and

(b)has not in fact been used for any other purpose.

(10)In this section “senior officer”, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body corporate; and for this purpose “director”, in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.

(11)Schedule 2 (definition of the appropriate permission) shall have effect.

50 Effect of notice imposing disclosure requirement.E+W+S+N.I.

(1)Subject to the following provisions of this section, the effect of a section 49 notice imposing a disclosure requirement in respect of any protected information on a person who is in possession at a relevant time of both the protected information and a means of obtaining access to the information and of disclosing it in an intelligible form is that he—

(a)shall be entitled to use any key in his possession to obtain access to the information or to put it into an intelligible form; and

(b)shall be required, in accordance with the notice imposing the requirement, to make a disclosure of the information in an intelligible form.

(2)A person subject to a requirement under subsection (1)(b) to make a disclosure of any information in an intelligible form shall be taken to have complied with that requirement if—

(a) he makes, instead, a disclosure of any key to the protected information that is in his possession; and

(b)that disclosure is made, in accordance with the notice imposing the requirement, to the person to whom, and by the time by which, he was required to provide the information in that form.

(3)Where, in a case in which a disclosure requirement in respect of any protected information is imposed on any person by a section 49 notice—

(a)that person is not in possession of the information,

(b)that person is incapable, without the use of a key that is not in his possession, of obtaining access to the information and of disclosing it in an intelligible form, or

(c)the notice states, in pursuance of a direction under section 51, that it can be complied with only by the disclosure of a key to the information,

the effect of imposing that disclosure requirement on that person is that he shall be required, in accordance with the notice imposing the requirement, to make a disclosure of any key to the protected information that is in his possession at a relevant time.

(4)Subsections (5) to (7) apply where a person (“the person given notice”)—

(a)is entitled or obliged to disclose a key to protected information for the purpose of complying with any disclosure requirement imposed by a section 49 notice; and

(b)is in possession of more than one key to that information.

(5)It shall not be necessary, for the purpose of complying with the requirement, for the person given notice to make a disclosure of any keys in addition to those the disclosure of which is, alone, sufficient to enable the person to whom they are disclosed to obtain access to the information and to put it into an intelligible form.

(6)Where—

(a)subsection (5) allows the person given notice to comply with a requirement without disclosing all of the keys in his possession, and

(b)there are different keys, or combinations of keys, in the possession of that person the disclosure of which would, under that subsection, constitute compliance,

the person given notice may select which of the keys, or combination of keys, to disclose for the purpose of complying with that requirement in accordance with that subsection.

(7)Subject to subsections (5) and (6), the person given notice shall not be taken to have complied with the disclosure requirement by the disclosure of a key unless he has disclosed every key to the protected information that is in his possession at a relevant time.

(8)Where, in a case in which a disclosure requirement in respect of any protected information is imposed on any person by a section 49 notice—

(a)that person has been in possession of the key to that information but is no longer in possession of it,

(b)if he had continued to have the key in his possession, he would have been required by virtue of the giving of the notice to disclose it, and

(c)he is in possession, at a relevant time, of information to which subsection (9) applies,

the effect of imposing that disclosure requirement on that person is that he shall be required, in accordance with the notice imposing the requirement, to disclose all such information to which subsection (9) applies as is in his possession and as he may be required, in accordance with that notice, to disclose by the person to whom he would have been required to disclose the key.

(9)This subsection applies to any information that would facilitate the obtaining or discovery of the key or the putting of the protected information into an intelligible form.

(10)In this section “relevant time”, in relation to a disclosure requirement imposed by a section 49 notice, means the time of the giving of the notice or any subsequent time before the time by which the requirement falls to be complied with.

51 Cases in which key required.E+W+S+N.I.

(1)A section 49 notice imposing a disclosure requirement in respect of any protected information shall not contain a statement for the purposes of section 50(3)(c) unless—

(a)the person who for the purposes of Schedule 2 granted the permission for the giving of the notice in relation to that information, or

(b)any person whose permission for the giving of a such a notice in relation to that information would constitute the appropriate permission under that Schedule,

has given a direction that the requirement can be complied with only by the disclosure of the key itself.

(2)A direction for the purposes of subsection (1) by [F154the police, SOCA, [F155SCDEA,F155]][F156F154Her Majesty's Revenue and Customs]F156 or a member of Her Majesty’s forces shall not be given—

(a)in the case of a direction by the police or by a member of Her Majesty’s forces who is a member of a police force, except by or with the permission of a chief officer of police;

[F157(aa)in the case of a direction by SOCA, except by or with the permission of the Director General of the Serious Organised Crime Agency;]

[F158F157(ab)in the case of a direction by SCDEA, except by or with the permission of the Director General of the Scottish Crime and Drug Enforcement Agency;]

F158(b)in the case of a direction by [F156Her Majesty's Revenue and Customs]F156 , except by or with the permission of [F159the Commissioners for Her Majesty's Revenue and Customs]F159 ; or

(c)in the case of a direction by a member of Her Majesty’s forces who is not a member of a police force, except by or with the permission of a person of or above the rank of brigadier or its equivalent.

(3)A permission given for the purposes of subsection (2) by a chief officer of police, [F160the Director General of the Serious Organised Crime Agency,F160][F161the Director General of the Scottish Crime and Drug Enforcement Agency,F161][F159the Commissioners for Her Majesty's Revenue and Customs]F159 or a person of or above any such rank as is mentioned in paragraph (c) of that subsection must be given expressly in relation to the direction in question.

(4)A person shall not give a direction for the purposes of subsection (1) unless he believes—

(a)that there are special circumstances of the case which mean that the purposes for which it was believed necessary to impose the requirement in question would be defeated, in whole or in part, if the direction were not given; and

(b)that the giving of the direction is proportionate to what is sought to be achieved by prohibiting any compliance with the requirement in question otherwise than by the disclosure of the key itself.

(5)The matters to be taken into account in considering whether the requirement of subsection (4)(b) is satisfied in the case of any direction shall include—

(a)(a) the extent and nature of any protected information, in addition to the protected information in respect of which the disclosure requirement is imposed, to which the key is also a key; and

(b)any adverse effect that the giving of the direction might have on a business carried on by the person on whom the disclosure requirement is imposed.

(6)Where a direction for the purposes of subsection (1) is given by a chief officer of police, [F162by the Director General of the Serious Organised Crime Agency,F162][F163by the Director General of the Scottish Crime and Drug Enforcement Agency,]F163 by [F159the Commissioners for Her Majesty's Revenue and Customs]F159 or by a member of Her Majesty’s forces, the person giving the direction shall give a notification that he has done so —

(a)in a case where the direction is given—

(i)by a member of Her Majesty’s forces who is not a member of a police force, and

(ii)otherwise than in connection with activities of members of Her Majesty’s forces in Northern Ireland,

to the Intelligences Services Commissioner; and

(b)in any other case, to the Chief Surveillance Commissioner.

(7)A notification under subsection (6)—

(a) must be given not more than seven days after the day of the giving of the direction to which it relates; and

(b)may be given either in writing or by being transmitted to the Commissioner in question by electronic means.

Annotations:

Amendments (Textual)

Contributions to costsE+W+S+N.I.

52 Arrangements for payments for disclosure.E+W+S+N.I.

(1)It shall be the duty of the Secretary of State to ensure that such arrangements are in force as he thinks appropriate for requiring or authorising, in such cases as he thinks fit, the making to persons to whom section 49 notices are given of appropriate contributions towards the costs incurred by them in complying with such notices.

(2)For the purpose of complying with his duty under this section, the Secretary of State may make arrangements for payments to be made out of money provided by Parliament.

OffencesE+W+S+N.I.

53 Failure to comply with a notice.E+W+S+N.I.

(1)A person to whom a section 49 notice has been given is guilty of an offence if he knowingly fails, in accordance with the notice, to make the disclosure required by virtue of the giving of the notice.

(2)In proceedings against any person for an offence under this section, if it is shown that that person was in possession of a key to any protected information at any time before the time of the giving of the section 49 notice, that person shall be taken for the purposes of those proceedings to have continued to be in possession of that key at all subsequent times, unless it is shown that the key was not in his possession after the giving of the notice and before the time by which he was required to disclose it.

(3) For the purposes of this section a person shall be taken to have shown that he was not in possession of a key to protected information at a particular time if—

(a)sufficient evidence of that fact is adduced to raise an issue with respect to it; and

(b)the contrary is not proved beyond a reasonable doubt.

(4)In proceedings against any person for an offence under this section it shall be a defence for that person to show—

(a)that it was not reasonably practicable for him to make the disclosure required by virtue of the giving of the section 49 notice before the time by which he was required, in accordance with that notice, to make it; but

(b)that he did make that disclosure as soon after that time as it was reasonably practicable for him to do so.

(5)A person guilty of an offence under this section shall be liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding [F164the appropriate maximum term]F164 or to a fine, or to both;

(b)on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.

[F165(5A)In subsection (5) ‘the appropriate maximum term’ means—

(a)in a national security case [F166or a child indecency case]F166, five years; and

(b)in any other case, two years.

(5B)In subsection (5A) ‘a national security case’ means a case in which the grounds specified in the notice to which the offence relates as the grounds for imposing a disclosure requirement were or included a belief that the imposition of the requirement was necessary in the interests of national security.]

[F167F165(6)In subsection (5A) “a child indecency case” means a case in which the grounds specified in the notice to which the offence relates as the grounds for imposing a disclosure requirement were or included a belief that the imposition of the requirement was necessary for the purpose of preventing or detecting an offence under any of the provisions listed in subsection (7).

(7)Those provisions are—

(a)section 1 of the Protection of Children Act 1978 (showing or taking etc an indecent photograph of a child: England and Wales);

(b)Article 3 of the Protection of Children (Northern Ireland) Order 1978 (S.I. 1978/1047 (N.I. 17)) (corresponding offence for Northern Ireland);

(c)section 52 or 52A of the Civic Government (Scotland) Act 1982 (showing or taking etc or possessing an indecent photograph of a child: Scotland);

(d)section 160 of the Criminal Justice Act 1988 (possessing an indecent photograph of a child: England and Wales);

(e)Article 15 of the Criminal Justice (Evidence, Etc.) (Northern Ireland) Order 1988 (S.I. 1988/1847 (N.I. 17)) (corresponding offence for Northern Ireland).F167]

54 Tipping-off.E+W+S+N.I.

(1)This section applies where a section 49 notice contains a provision requiring—

(a)the person to whom the notice is given, and

(b)every other person who becomes aware of it or of its contents,

to keep secret the giving of the notice, its contents and the things done in pursuance of it.

(2)A requirement to keep anything secret shall not be included in a section 49 notice except where—

(a)it is included with the consent of the person who for the purposes of Schedule 2 granted the permission for the giving of the notice; or

(b)the person who gives the notice is himself a person whose permission for the giving of such a notice in relation to the information in question would have constituted appropriate permission under that Schedule.

(3)A section 49 notice shall not contain a requirement to keep anything secret except where the protected information to which it relates—

(a)has come into the possession of the police, [F168SOCA,F168][F169SCDEA,F169][F170Her Majesty's Revenue and Customs]F170 or any of the intelligence services, or

(b)is likely to come into the possession of the police, [F168SOCA,F168][F169SCDEA,F169][F170Her Majesty's Revenue and Customs]F170 or any of the intelligence services,

by means which it is reasonable, in order to maintain the effectiveness of any investigation or operation or of investigatory techniques generally, or in the interests of the safety or well-being of any person, to keep secret from a particular person.

(4)A person who makes a disclosure to any other person of anything that he is required by a section 49 notice to keep secret shall be guilty of an offence and liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both;

(b)on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.

(5)In proceedings against any person for an offence under this section in respect of any disclosure, it shall be a defence for that person to show that—

(a)the disclosure was effected entirely by the operation of software designed to indicate when a key to protected information has ceased to be secure; and

(b)that person could not reasonably have been expected to take steps, after being given the notice or (as the case may be) becoming aware of it or of its contents, to prevent the disclosure.

(6)In proceedings against any person for an offence under this section in respect of any disclosure, it shall be a defence for that person to show that—

(a)the disclosure was made by or to a professional legal adviser in connection with the giving, by the adviser to any client of his, of advice about the effect of provisions of this Part; and

(b)the person to whom or, as the case may be, by whom it was made was the client or a representative of the client.

(7)In proceedings against any person for an offence under this section in respect of any disclosure, it shall be a defence for that person to show that the disclosure was made by a legal adviser—

(a)in contemplation of, or in connection with, any legal proceedings; and

(b)for the purposes of those proceedings.

(8)Neither subsection (6) nor subsection (7) applies in the case of a disclosure made with a view to furthering any criminal purpose.

(9)In proceedings against any person for an offence under this section in respect of any disclosure, it shall be a defence for that person to show that the disclosure was confined to a disclosure made to a relevant Commissioner or authorised—

(a)by such a Commissioner;

(b)by the terms of the notice;

(c)by or on behalf of the person who gave the notice; or

(d)by or on behalf of a person who—

(i)is in lawful possession of the protected information to which the notice relates; and

(ii)came into possession of that information as mentioned in section 49(1).

(10)In proceedings for an offence under this section against a person other than the person to whom the notice was given, it shall be a defence for the person against whom the proceedings are brought to show that he neither knew nor had reasonable grounds for suspecting that the notice contained a requirement to keep secret what was disclosed.

(11)In this section “relevant Commissioner” means the Interception of Communications Commissioner, the Intelligence Services Commissioner or any Surveillance Commissioner or Assistant Surveillance Commissioner.

SafeguardsE+W+S+N.I.

55 General duties of specified authorities.E+W+S+N.I.

(1)This section applies to—

(a)the Secretary of State and every other Minister of the Crown in charge of a government department;

(b)every chief officer of police;

[F171(ba)the Director General of the Serious Organised Crime Agency;]

[F172F171(bb)the Director General of the Scottish Crime and Drug Enforcement Agency;]

[F173F172(c)the Commissioners for Her Majesty's Revenue and Customs;]

F173(d)every person whose officers or employees include persons with duties that involve the giving of section 49 notices.

(2)It shall be the duty of each of the persons to whom this section applies to ensure that such arrangements are in force, in relation to persons under his control who by virtue of this Part obtain possession of keys to protected information, as he considers necessary for securing—

(a)that a key disclosed in pursuance of a section 49 notice is used for obtaining access to, or putting into an intelligible form, only protected information in relation to which power to give such a notice was exercised or could have been exercised if the key had not already been disclosed;

(b)that the uses to which a key so disclosed is put are reasonable having regard both to the uses to which the person using the key is entitled to put any protected information to which it relates and to the other circumstances of the case;

(c)that, having regard to those matters, the use and any retention of the key are proportionate to what is sought to be achieved by its use or retention;

(d)that the requirements of subsection (3) are satisfied in relation to any key disclosed in pursuance of a section 49 notice;

(e)that, for the purpose of ensuring that those requirements are satisfied, any key so disclosed is stored, for so long as it is retained, in a secure manner;

(f)that all records of a key so disclosed (if not destroyed earlier) are destroyed as soon as the key is no longer needed for the purpose of enabling protected information to be put into an intelligible form.

(3)The requirements of this subsection are satisfied in relation to any key disclosed in pursuance of a section 49 notice if—

(a)the number of persons to whom the key is disclosed or otherwise made available, and

(b)the number of copies made of the key,

are each limited to the minimum that is necessary for the purpose of enabling protected information to be put into an intelligible form.

[F174(3B)Paragraph 6(2) of schedule 2 to the Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10) does not apply in relation to the duties of the Director General of the Scottish Crime and Drug Enforcement Agency under this section.]

[F175F174(3A)Paragraph 11 of Schedule 1 to the Serious Organised Crime and Police Act 2005 does not apply in relation to the duties of the Director General of the Serious Organised Crime Agency under this section.]

F175(4)Subject to subsection (5), where any relevant person incurs any loss or damage in consequence of—

(a)any breach by a person to whom this section applies of the duty imposed on him by subsection (2), or

(b)any contravention by any person whatever of arrangements made in pursuance of that subsection in relation to persons under the control of a person to whom this section applies,

the breach or contravention shall be actionable against the person to whom this section applies at the suit or instance of the relevant person.

(5)A person is a relevant person for the purposes of subsection (4) if he is—

(a)a person who has made a disclosure in pursuance of a section 49 notice; or

(b)a person whose protected information or key has been disclosed in pursuance of such a notice;

and loss or damage shall be taken into account for the purposes of that subsection to the extent only that it relates to the disclosure of particular protected information or a particular key which, in the case of a person falling with paragraph (b), must be his information or key.

(6)For the purposes of subsection (5)—

(a)information belongs to a person if he has any right that would be infringed by an unauthorised disclosure of the information; and

(b)a key belongs to a person if it is a key to information that belongs to him or he has any right that would be infringed by an unauthorised disclosure of the key.

(7)In any proceedings brought by virtue of subsection (4), it shall be the duty of the court to have regard to any opinion with respect to the matters to which the proceedings relate that is or has been given by a relevant Commissioner.

(8)In this section “relevant Commissioner” means the Interception of Communications Commissioner, the Intelligence Services Commissioner, the Investigatory Powers Commissioner for Northern Ireland or any Surveillance Commissioner or Assistant Surveillance Commissioner.

Interpretation of Part IIIE+W+S+N.I.

56 Interpretation of Part III.E+W+S+N.I.

(1)In this Part—

(2)References in this Part to a person’s having information (including a key to protected information) in his possession include references—

(a)to its being in the possession of a person who is under his control so far as that information is concerned;

(b)to his having an immediate right of access to it, or an immediate right to have it transmitted or otherwise supplied to him; and

(c)to its being, or being contained in, anything which he or a person under his control is entitled, in exercise of any statutory power and without otherwise taking possession of it, to detain, inspect or search.

(3)References in this Part to something’s being intelligible or being put into an intelligible form include references to its being in the condition in which it was before an encryption or similar process was applied to it or, as the case may be, to its being restored to that condition.

(4)In this section—

(a)references to the authenticity of any communication or data are references to any one or more of the following—

(i)whether the communication or data comes from a particular person or other source;

(ii)whether it is accurately timed and dated;

(iii)whether it is intended to have legal effect;

and

(b)references to the integrity of any communication or data are references to whether there has been any tampering with or other modification of the communication or data.

Annotations:

Amendments (Textual)

F176S. 56(1): words in the definition of "chief officer of police" substituted (4.6.2007) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 174; S.I. 2007/1442, art. 2(1)

F177S. 56(1): paras (j) and (k) in the definition of "chief officer of police" repealed (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 174, 178, Sch. 4 para. 146(a), Sch. 17; S.I. 2006/378, art. 4(1), Sch. paras. 10, 13(hh) (subject to art. 4(2)-(7))

F178S. 56(1): definition of "the custom and excise" repealed (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 92, 94, Sch. 12 para. 23, Sch. 14; S.I. 2008/219, art. 2(d)(ii)

Marginal Citations

Part IVE+W+S+N.I. Scrutiny etc. of investigatory powers and of the functions of the intelligence services

Annotations:

Modifications etc. (not altering text)

C44Pt. IV (ss. 26-48): power to apply (with modifications) conferred (1.10.2002) by 2002 c. 30, s. 19(2)(b); S.I. 2002/2306, art. 2(b)(v)

CommissionersE+W+S+N.I.

57 Interception of Communications Commissioner.E+W+S+N.I.

(1)The Prime Minister shall appoint a Commissioner to be known as the Interception of Communications Commissioner.

(2)Subject to subsection (4), the Interception of Communications Commissioner shall keep under review—

(a)the exercise and performance by the Secretary of State of the powers and duties conferred or imposed on him by or under sections 1 to 11;

[F183(aa)the exercise and performance by the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998) of the powers and duties conferred or imposed on them by or under sections 5, 9 and 10;]

(b)the exercise and performance, by the persons on whom they are conferred or imposed, of the powers and duties conferred or imposed by or under Chapter II of Part I;

(c)the exercise and performance by the Secretary of State in relation to information obtained under Part I of the powers and duties conferred or imposed on him by or under Part III; and

(d)the adequacy of the arrangements by virtue of which—

(i)the duty which is imposed on the Secretary of State [F184or, the Scottish Ministers (by virtue of provision under section 63 of the Scotland Act 1998),]by section 15, and

(ii)so far as applicable to information obtained under Part I, the duties imposed by section 55,

are sought to be discharged.

(3)The Interception of Communications Commissioner shall give the Tribunal all such assistance (including his opinion as to any issue falling to be determined by the Tribunal) as the Tribunal may require—

(a)in connection with the investigation of any matter by the Tribunal; or

(b)otherwise for the purposes of the Tribunal’s consideration or determination of any matter.

(4)It shall not be the function of the Interception of Communications Commissioner to keep under review the exercise of any power of the Secretary of State to make, amend or revoke any subordinate legislation.

(5)A person shall not be appointed under this section as the Interception of Communications Commissioner unless he holds or has held a high judicial office (within the meaning of [F185Part 3 of the Constitutional Reform Act 2005) or is or has been a member of the Judicial Committee of the Privy Council]F185).

(6)The Interception of Communications Commissioner shall hold office in accordance with the terms of his appointment; and there shall be paid to him out of money provided by Parliament such allowances as the Treasury may determine.

(7)The Secretary of State, after consultation with the Interception of Communications Commissioner, shall—

(a)make such technical facilities available to the Commissioner, and

(b)subject to the approval of the Treasury as to numbers, provide the Commissioner with such staff,

as are sufficient to secure that the Commissioner is able properly to carry out his functions.

(8)On the coming into force of this section the Commissioner holding office as the Commissioner under section 8 of the M55Interception of Communications Act 1985 shall take and hold office as the Interception of Communications Commissioner as if appointed under this Act—

(a)for the unexpired period of his term of office under that Act; and

(b)otherwise, on the terms of his appointment under that Act.

Annotations:

Amendments (Textual)

F184Words in s. 57(2)(d)(i) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 9(b) (with art. 6)

Commencement Information

I3S. 57 wholly in force at 1.10.2007; s. 57 not in force at Royal Assent see s. 83(2); s. 57 except s. 57(2)(b)(c)(d)(ii) in force at 2.10.2000 by S.I. 2000/2543, art. 3; s. 57(2)(b) in force at 5.1.2004 by S.I. 2003/3140, art. 2(b); s. 57(2)(c)(d)(ii) in force at 1.10.2007 by S.I. 2007/2196, art. 2

Marginal Citations

58 Co-operation with and reports by s. 57 Commissioner.E+W+S+N.I.

(1)It shall be the duty of—

(a)every person holding office under the Crown,

[F186(b)every member of the staff of the Serious Organised Crime Agency,]

[F187F186(ba)every member of the Scottish Crime and Drug Enforcement Agency,]

F187(d)every person employed by or for the purposes of a police force,

(e)every person required for the purposes of section 11 to provide assistance with giving effect to an interception warrant,

(f)every person on whom an obligation to take any steps has been imposed under section 12,

(g)every person by or to whom an authorisation under section 22(3) [F188, (3B) or (3F)]F188 has been granted,

(h)every person to whom a notice under section 22(4) has been given,

(i)every person to whom a notice under section 49 has been given in relation to any information obtained under Part I, and

(j)every person who is or has been employed for the purposes of any business of a person falling within paragraph (e), (f), (h) or (i),

to disclose or provide to the Interception of Communications Commissioner all such documents and information as he may require for the purpose of enabling him to carry out his functions under section 57.

(2)If it at any time appears to the Interception of Communications Commissioner—

(a)that there has been a contravention of the provisions of this Act in relation to any matter with which that Commissioner is concerned, and

(b)that the contravention has not been the subject of a report made to the Prime Minister by the Tribunal,

he shall make a report to the Prime Minister with respect to that contravention.

(3)If it at any time appears to the Interception of Communications Commissioner that any arrangements by reference to which the duties imposed by sections 15 and 55 have sought to be discharged have proved inadequate in relation to any matter with which the Commissioner is concerned, he shall make a report to the Prime Minister with respect to those arrangements.

(4)As soon as practicable after the end of each calendar year, the Interception of Communications Commissioner shall make a report to the Prime Minister with respect to the carrying out of that Commissioner’s functions.

(5)The Interception of Communications Commissioner may also, at any time, make any such other report to the Prime Minister on any matter relating to the carrying out of the Commissioner’s functions as the Commissioner thinks fit.

[F189(5A)The Interception of Communications Commissioner may also, at any time, make any such other report to the First Minister on any matter relating to the carrying out of the Commissioner’s functions so far as they relate to the exercise by the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998) of their powers under sections 5, 9(1)(b) and (3), 10(1)(a) and (2) and 15(1) of this Act, as the Commissioner thinks fit.]

(6)The Prime Minister shall lay before each House of Parliament a copy of every annual report made by the Interception of Communications Commissioner under subsection (4), together with a statement as to whether any matter has been excluded from that copy in pursuance of subsection (7).

[F190(6A)The Prime Minister shall send a copy of every annual report made by the Interception of Communications Commissioner under subsection (4) which he lays in terms of subsection (6), together with a copy of the statement referred to in subsection (6), to the First Minister who shall forthwith lay that copy report and statement before the Scottish Parliament.]

(7)If it appears to the Prime Minister, after consultation with the Interception of Communications Commissioner [F191and if it appears relevant to do so, with the First Minister], that the publication of any matter in an annual report would be contrary to the public interest or prejudicial to—

(a)national security,

(b)the prevention or detection of serious crime,

(c)the economic well-being of the United Kingdom, or

(d)the continued discharge of the functions of any public authority whose activities include activities that are subject to review by that Commissioner,

the Prime Minister may exclude that matter from the copy of the report as laid before each House of Parliament.

Annotations:

Amendments (Textual)

F190S. 58(6A) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 10)(b) (with art. 6)

F191Words in s. 58(7) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 10(c) (with art. 6)

Commencement Information

I4S. 58 wholly in force at 1.10.2007; s. 58 not in force at Royal Assent see s. 83(2); s. 58 in force except s. 58(1)(g)(h)(i) and s. 58(1)(j) in respect of s. 58(1)(h)(i) at 2.10.2000 by S.I. 2000/2543, art. 3; s. 58(1)(g)(h)(j) in force at 5.1.2004 by S.I. 2003/3140, art. 2; s. 58(1)(i) in force at 1.10.2007 by S.I. 2007/2196, art. 2(c)

59 Intelligence Services Commissioner.E+W+S+N.I.

(1)The Prime Minister shall appoint a Commissioner to be known as the Intelligence Services Commissioner.

(2)Subject to subsection (4), the Intelligence Services Commissioner shall keep under review, so far as they are not required to be kept under review by the Interception of Communications Commissioner—

(a)the exercise by the Secretary of State of his powers under sections 5 to 7of [F192,or the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998) of their powers under section s 5 and 6(3) and (4) of]the M56Intelli gence Services Act 1994 (warrants for interference with wireless telegraphy, entry and interference with property etc.);

(b)the exercise and performance by the Secretary of State [F193or the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998),], in connection with or in relation to—

(i)the activities of the intelligence services, and

(ii)the activities in places other than Northern Ireland of the officials of the Ministry of Defence and of members of Her Majesty’s forces,

of the powers and duties conferred or imposed on him by Parts II and III of this Act [F194or on them by Part II of this Act];

(c)the exercise and performance by members of the intelligence services of the powers and duties conferred or imposed on them by or under Parts II and III of this Act;

(d)the exercise and performance in places other than Northern Ireland, by officials of the Ministry of Defence and by members of Her Majesty’s forces, of the powers and duties conferred or imposed on such officials or members of Her Majesty’s forces by or under Parts II and III; and

(e)the adequacy of the arrangements by virtue of which the duty imposed by section 55 is sought to be discharged—

(i)in relation to the members of the intelligence services; and

(ii)in connection with any of their activities in places other than Northern Ireland, in relation to officials of the Ministry of Defence and members of Her Majesty’s forces.

[F195(2A)The Intelligence Services Commissioner shall also keep under review—

(a)the acquisition, storage and use by the intelligence services of information recorded in the National Identity Register;

(b)the provision of such information to members of the intelligence services in accordance with any provision made by or under the Identity Cards Act 2006;

(c)arrangements made by the Secretary of State or any of the intelligence services for the purposes of anything mentioned in paragraph (a) or (b).]

F195(3)The Intelligence Services Commissioner shall give the Tribunal all such assistance (including his opinion as to any issue falling to be determined by the Tribunal) as the Tribunal may require—

(a)in connection with the investigation of any matter by the Tribunal; or

(b)otherwise for the purposes of the Tribunal’s consideration or determination of any matter.

(4)It shall not be the function of the Intelligence Services Commissioner to keep under review the exercise of any power of the Secretary of State to make, amend or revoke any subordinate legislation.

(5)A person shall not be appointed under this section as the Intelligence Services Commissioner unless he holds or has held a high judicial office (within the meaning of [F196Part 3 of the Constitutional Reform Act 2005) or is or has been a member of the Judicial Committee of the Privy Council]F196).

(6)The Intelligence Services Commissioner shall hold office in accordance with the terms of his appointment; and there shall be paid to him out of money provided by Parliament such allowances as the Treasury may determine.

(7)The Secretary of State shall, after consultation with the Intelligence Services Commissioner and subject to the approval of the Treasury as to numbers, provide him with such staff as the Secretary of State considers necessary for the carrying out of the Commissioner’s functions.

(8)Section 4 of the M57Security Service Act 1989 and section 8 of the M58Intelligence Services Act 1994 (Commissioners for the purposes of those Acts) shall cease to have effect.

(9)On the coming into force of this section the Commissioner holding office as the Commissioner under section 8 of the M59Intelligence Services Act 1994 shall take and hold office as the Intelligence Services Commissioner as if appointed under this Act—

(a)for the unexpired period of his term of office under that Act; and

(b)otherwise, on the terms of his appointment under that Act.

(10)Subsection (7) of section 41 shall apply for the purposes of this section as it applies for the purposes of that section.

Annotations:

Amendments (Textual)

F192Words in s. 59(2)(a) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 11(a) (with art. 6)

F193Words in s. 59(2)(b) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 11(b)(i) (with art. 6)

F194Words in s. 59(2)(b) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 11(b)(ii) (with art. 6)

Commencement Information

I5S. 59 partly in force; s. 59 not in force at royal Assent see s. 83(2); s.59(1)(2)(a)(3)-(10) in force at 2.10.2000 and the rest of s. 59(2) in force at 2.10.2000 for certain purposes by S.I. 2000/2543, art. 3; s. 59(2)(b) in force in so far as not already in force by S.I. 2007/2196, art. 2(d)

Marginal Citations

60 Co-operation with and reports by s. 59 Commissioner.E+W+S+N.I.

(1)It shall be the duty of—

(a)every member of an intelligence service,

(b)every official of the department of the Secretary of State [F197and every member of staff of the Scottish Administration (by virtue of provision under section 63 of the Scotland Act 1998)], and

(c)every member of Her Majesty’s forces,

to disclose or provide to the Intelligence Services Commissioner all such documents and information as he may require for the purpose of enabling him to carry out his functions under section 59.

(2)As soon as practicable after the end of each calendar year, the Intelligence Services Commissioner shall make a report to the Prime Minister with respect to the carrying out of that Commissioner’s functions.

(3)The Intelligence Services Commissioner may also, at any time, make any such other report to the Prime Minister on any matter relating to the carrying out of the Commissioner’s functions as the Commissioner thinks fit.

[F198(3A)The Intelligence Services Commissioner may also, at any time, make any such other report to the First Minister on any matter relating to the carrying out of the Commissioner’s functions so far as they relate to the exercise by the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998) of their powers under sections 5 and 6(3) and (4) of the Intelligence Services Act 1994 F199 or under Parts I and II of this Act, as the Commissioner thinks fit.]

(4)The Prime Minister shall lay before each House of Parliament a copy of every annual report made by the Intelligence Services Commissioner under subsection (2), together with a statement as to whether any matter has been excluded from that copy in pursuance of subsection (5).

[F200(4A)The Prime Minister shall send a copy of every annual report made by the Intelligence Services Commissioner under subsection (2) which he lays in terms of subsection (4), together with a copy of the statement referred to in subsection (4), to the First Minister who shall forthwith lay that copy report and statement before the Scottish Parliament.]

(5)If it appears to the Prime Minister, after consultation with the Intelligence Services Commissioner [F201and, if it appears relevant to do so, with the First Minister], that the publication of any matter in an annual report would be contrary to the public interest or prejudicial to—

(a)national security,

(b)the prevention or detection of serious crime,

(c)the economic well-being of the United Kingdom, or

(d)the continued discharge of the functions of any public authority whose activities include activities that are subject to review by that Commissioner,

the Prime Minister may exclude that matter from the copy of the report as laid before each House of Parliament.

(6)Subsection (7) of section 41 shall apply for the purposes of this section as it applies for the purposes of that section.

Annotations:

Amendments (Textual)

F197Words in s. 60(1)(b) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 12(a) (with art. 6)

F201Words in s. 60(5) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 12(d) (with art. 6)

61 Investigatory Powers Commissioner for Northern Ireland.E+W+S+N.I.

(1)The Prime Minister, after consultation with the First Minister and deputy First Minister in Northern Ireland, shall appoint a Commissioner to be known as the Investigatory Powers Commissioner for Northern Ireland.

(2)The Investigatory Powers Commissioner for Northern Ireland shall keep under review the exercise and performance in Northern Ireland, by the persons on whom they are conferred or imposed, of any powers or duties under Part II which are conferred or imposed by virtue of an order under section 30 made by the Office of the First Minister and deputy First Minister in Northern Ireland.

(3)The Investigatory Powers Commissioner for Northern Ireland shall give the Tribunal all such assistance (including his opinion as to any issue falling to be determined by the Tribunal) as the Tribunal may require—

(a)in connection with the investigation of any matter by the Tribunal; or

(b)otherwise for the purposes of the Tribunal’s consideration or determination of any matter.

(4)It shall be the duty of—

(a)every person by whom, or on whose application, there has been given or granted any authorisation the function of giving or granting which is subject to review by the Investigatory Powers Commissioner for Northern Ireland,

(b)every person who has engaged in conduct with the authority of such an authorisation,

(c)every person who holds or has held any office, rank or position with the same public authority as a person falling within paragraph (a), and

(d)every person who holds or has held any office, rank or position with any public authority for whose benefit (within the meaning of Part II) activities which are or may be subject to any such review have been or may be carried out,

to disclose or provide to that Commissioner all such documents and information as he may require for the purpose of enabling him to carry out his functions.

(5)As soon as practicable after the end of each calendar year, the Investigatory Powers Commissioner for Northern Ireland shall make a report to the First Minister and deputy First Minister in Northern Ireland with respect to the carrying out of that Commissioner’s functions.

(6)The First Minister and deputy First Minister in Northern Ireland shall lay before the Northern Ireland Assembly a copy of every annual report made by the Investigatory Powers Commissioner for Northern Ireland under subsection (5), together with a statement as to whether any matter has been excluded from that copy in pursuance of subsection (7).

(7)If it appears to the First Minister and deputy First Minister in Northern Ireland, after consultation with the Investigatory Powers Commissioner for Northern Ireland, that the publication of any matter in an annual report would be contrary to the public interest or prejudicial to—

(a)the prevention or detection of serious crime, or

(b)the continued discharge of the functions of any public authority whose activities include activities that are subject to review by that Commissioner,

they may exclude that matter from the copy of the report as laid before the Northern Ireland Assembly.

(8)A person shall not be appointed under this section as the Investigatory Powers Commissioner for Northern Ireland unless he holds or has held office in Northern Ireland—

(a)in any capacity in which he is or was the holder of a high judicial office (within the meaning of [F202Part 3 of the Constitutional Reform Act 2005]F202); or

(b)as a county court judge.

(9)The Investigatory Powers Commissioner for Northern Ireland shall hold office in accordance with the terms of his appointment; and there shall be paid to him out of the Consolidated Fund of Northern Ireland such allowances as the Department of Finance and Personnel may determine.

(10)The First Minister and deputy First Minister in Northern Ireland shall, after consultation with the Investigatory Powers Commissioner for Northern Ireland, provide him with such staff as they consider necessary for the carrying out of his functions.

Annotations:

Amendments (Textual)

62 Additional functions of Chief Surveillance Commissioner.E+W+S+N.I.

(1)The Chief Surveillance Commissioner shall (in addition to his functions under the M60Police Act 1997) keep under review, so far as they are not required to be kept under review by the Interception of Communications Commissioner, the Intelligence Services Commissioner or the Investigatory Powers Commissioner for Northern Ireland—

(a)the exercise and performance, by the persons on whom they are conferred or imposed, of the powers and duties conferred or imposed by or under Part II;

(b)the exercise and performance, by any person other than a judicial authority, of the powers and duties conferred or imposed, otherwise than with the permission of such an authority, by or under Part III; and

(c)the adequacy of the arrangements by virtue of which the duties imposed by section 55 are sought to be discharged in relation to persons whose conduct is subject to review under paragraph (b).

(2)It shall not by virtue of this section be the function of the Chief Surveillance Commissioner to keep under review the exercise of any power of the Secretary of State to make, amend or revoke any subordinate legislation.

(3)In this section “judicial authority” means—

(a)any judge of the High Court or of the Crown Court or any Circuit Judge;

(b)any judge of the High Court of Justiciary or any sheriff;

(c)any justice of the peace;

(d)any county court judge or resident magistrate in Northern Ireland;

(e)any person holding any such judicial office as entitles him to exercise the jurisdiction of a judge of the Crown Court or of a justice of the peace.

Annotations:

Commencement Information

I6S. 62 wholly in force at 1.10.2007; s. 62 not in force at Royal Assent see s. 82(2); s. 62(1)(a)(2)(3) in force at 25.9.2000 by S.I. 2000/2543, art. 2; s. 62(1)(b)(c) in force at 1.10.2007 by S.I. 2007/2196, art. 2(e)

Marginal Citations

63 Assistant Surveillance Commissioners.E+W+S+N.I.

(1)The Prime Minister may, after consultation with the Chief Surveillance Commissioner as to numbers, appoint as Assistant Surveillance Commissioners such number of persons as the Prime Minister considers necessary (in addition to the ordinary Surveillance Commissioners) for the purpose of providing the Chief Surveillance Commissioner with assistance under this section.

(2)A person shall not be appointed as an Assistant Surveillance Commissioner unless he holds or has held office as—

(a)a judge of the Crown Court or a Circuit judge;

(b)a sheriff in Scotland; or

(c)a county court judge in Northern Ireland.

(3)The Chief Surveillance Commissioner may—

(a)require any ordinary Surveillance Commissioner or any Assistant Surveillance Commissioner to provide him with assistance in carrying out his functions under section 62(1); or

(b)require any Assistant Surveillance Commissioner to provide him with assistance in carrying out his equivalent functions under any Act of the Scottish Parliament in relation to any provisions of such an Act that are equivalent to those of Part II of this Act.

(4)The assistance that may be provided under this section includes—

(a)the conduct on behalf of the Chief Surveillance Commissioner of the review of any matter; and

(b)the making of a report to the Chief Surveillance Commissioner about the matter reviewed.

(5)Subsections (3) to (8) of section 91 of the M61Police Act 1997 (Commissioners) apply in relation to a person appointed under this section as they apply in relation to a person appointed under that section.

Annotations:

Marginal Citations

64 Delegation of Commissioners’ functions.E+W+S+N.I.

(1)Anything authorised or required by or under any enactment or any provision of an Act of the Scottish Parliament to be done by a relevant Commissioner may be done by any member of the staff of that Commissioner who is authorised for the purpose (whether generally or specifically) by that Commissioner.

(2)In this section “relevant Commissioner” means the Interception of Communications Commissioner, the Intelligence Services Commissioner, the Investigatory Powers Commissioner for Northern Ireland or any Surveillance Commissioner or Assistant Surveillance Commissioner.

The TribunalE+W+S+N.I.

65 The Tribunal.E+W+S+N.I.

(1)There shall, for the purpose of exercising the jurisdiction conferred on them by this section, be a tribunal consisting of such number of members as Her Majesty may by Letters Patent appoint.

(2)The jurisdiction of the Tribunal shall be—

(a)to be the only appropriate tribunal for the purposes of section 7 of the M62Human Rights Act 1998 in relation to any proceedings under subsection (1)(a) of that section (proceedings for actions incompatible with Convention rights) which fall within subsection (3) of this section;

(b)to consider and determine any complaints made to them which, in accordance with subsection (4), are complaints for which the Tribunal is the appropriate forum;

(c)to consider and determine any reference to them by any person that he has suffered detriment as a consequence of any prohibition or restriction, by virtue of section 17, on his relying in, or for the purposes of, any civil proceedings on any matter; and