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Interception Warrants
RIPA allows for the interception of telephone calls by appropriate authorities - for example, Security Service, Secret Intelligence Service, GCHQ, Police, or Customs - under authorisation of the Home Secretary . Such authorisation is provided by way of an interception warrant which must name or describe either one person as the interception subject, or a single set of premises where the interception is to take place . In limited circumstances the Home Secretary may issue a ‘certified’ interception warrant which can disapply some of the requirements of a normal warrant and, in particular, the requirement to specify a person or premises. These certified warrants should only normally be issued in relation to ‘external communications’ sent or received outside the UK. This could cover interception of communications channelled through a foreign Internet Service Provider (ISP).
The procedure to be followed and the information to be provided when seeking an interception warrant from the Home Secretary are set out in ‘The Interception of Communications Code of Practice’ (7th imprint, 2007). An interception warrant can only be issued if the Home Secretary believes that it is necessary for a reason relating to national security, serious crime or the economic well-being of the UK (the ‘stated reasons’) and it is proportionate in the circumstances . As well as balancing the intrusiveness of the interception against the operational need for it, the Home Secretary must consider whether the information sought could reasonably be obtained by other means . The Code of Practice also includes special rules regarding ‘collateral infringement of privacy’. Tapping a telephone does not only infringe the privacy of the person who owns the telephone, the interception subject – it also affects anyone who calls or is called by that person. If communications relating to medical, religious, journalistic or legally privileged material are likely to be involved, the application for an interception warrant should draw attention to this as it will give rise to an unusual degree of collateral infringement of privacy. This is to be taken into account by the Home Secretary when considering the application.
An interception warrant is usually only valid for three months . A warrant may be renewed during this three month period for a further six months if considered necessary for one of the ‘stated reasons’ above . These reasons are wide, and the scope for investigating the propriety of an official tap or intercept authorised by the Home Secretary is extremely limited. The Interception of Communications Commissioner (IOC Commissioner) is responsible for reviewing the way in which the Home Secretary exercises his powers to issue Interception Warrants, and publishes a report each year which is shared with Parliament. However, the IOC Commissioner has no powers beyond this reporting function. RIPA establishes the Investigatory Powers Tribunal (IPT) which can investigate whether there was a warrant and, if so, whether it was properly issued . However, the complainant is not given access to the government’s reasons and therefore is unlikely to have a proper chance to test whether the issue of the warrant was justified or not.
Where it is found that an Interception Warrant has been improperly issued, the IPT has power to order compensation and the destruction of the recorded material. If the interception took place without a warrant the only sanction is a criminal prosecution - to which the Director of Public Prosecutions must consent.
Duties on Communication Service Providers
RIPA imposes duties on communication service providers to provide assistance to effect an interception authorised by an interception warrant. A statutory duty of confidentiality is imposed on the police, civil servants, postal and telecommunication workers to keep secret the contents of any interception warrant, the details of its issue and implementation, and everything in the intercepted material. It is an offence to give disclosure of any of this secret material, subject to specific defences including disclosure to legal advisers.
The procedure to be followed and the information to be provided when seeking an interception warrant from the Home Secretary are set out in ‘The Interception of Communications Code of Practice’ (7th imprint, 2007). An interception warrant can only be issued if the Home Secretary believes that it is necessary for a reason relating to national security, serious crime or the economic well-being of the UK (the ‘stated reasons’) and it is proportionate in the circumstances . As well as balancing the intrusiveness of the interception against the operational need for it, the Home Secretary must consider whether the information sought could reasonably be obtained by other means . The Code of Practice also includes special rules regarding ‘collateral infringement of privacy’. Tapping a telephone does not only infringe the privacy of the person who owns the telephone, the interception subject – it also affects anyone who calls or is called by that person. If communications relating to medical, religious, journalistic or legally privileged material are likely to be involved, the application for an interception warrant should draw attention to this as it will give rise to an unusual degree of collateral infringement of privacy. This is to be taken into account by the Home Secretary when considering the application.
An interception warrant is usually only valid for three months . A warrant may be renewed during this three month period for a further six months if considered necessary for one of the ‘stated reasons’ above . These reasons are wide, and the scope for investigating the propriety of an official tap or intercept authorised by the Home Secretary is extremely limited. The Interception of Communications Commissioner (IOC Commissioner) is responsible for reviewing the way in which the Home Secretary exercises his powers to issue Interception Warrants, and publishes a report each year which is shared with Parliament. However, the IOC Commissioner has no powers beyond this reporting function. RIPA establishes the Investigatory Powers Tribunal (IPT) which can investigate whether there was a warrant and, if so, whether it was properly issued . However, the complainant is not given access to the government’s reasons and therefore is unlikely to have a proper chance to test whether the issue of the warrant was justified or not.
Where it is found that an Interception Warrant has been improperly issued, the IPT has power to order compensation and the destruction of the recorded material. If the interception took place without a warrant the only sanction is a criminal prosecution - to which the Director of Public Prosecutions must consent.
Duties on Communication Service Providers
RIPA imposes duties on communication service providers to provide assistance to effect an interception authorised by an interception warrant. A statutory duty of confidentiality is imposed on the police, civil servants, postal and telecommunication workers to keep secret the contents of any interception warrant, the details of its issue and implementation, and everything in the intercepted material. It is an offence to give disclosure of any of this secret material, subject to specific defences including disclosure to legal advisers.
