Investigatory Powers Act 2016
This Act sets out the extent to which certain investigatory powers may be used to interfere with privacy.
This Part imposes certain duties in relation to privacy and contains other protections for privacy.
These other protections include offences and penalties in relation to—
the unlawful interception of communications, and
the unlawful obtaining of communications data.
This Part also abolishes and restricts various general powers to obtain communications data and restricts the circumstances in which equipment interference, and certain requests about the interception of communications, can take place.
Further protections for privacy—
can be found, in particular, in the regimes provided for by Parts 2 to 7 and in the oversight arrangements in Part 8, and
also exist—
by virtue of the Human Rights Act 1998,
in section 55 of the Data Protection Act 1998 (unlawful obtaining etc. of personal data),
in section 48 of the Wireless Telegraphy Act 2006 (offence of interception or disclosure of messages),
in sections 1 to 3A of the Computer Misuse Act 1990 (computer misuse offences),
in the common law offence of misconduct in public office, and
elsewhere in the law.
The regimes provided for by Parts 2 to 7 are as follows—
Part 2 and Chapter 1 of Part 6 set out circumstances (including under a warrant) in which the interception of communications is lawful and make further provision about the interception of communications and the treatment of material obtained in connection with it,
Part 3 and Chapter 2 of Part 6 set out circumstances in which the obtaining of communications data is lawful in pursuance of an authorisation or under a warrant and make further provision about the obtaining and treatment of such data,
Part 4 makes provision for the retention of certain communications data in pursuance of a notice,
Part 5 and Chapter 3 of Part 6 deal with equipment interference warrants, and
Part 7 deals with bulk personal dataset warrants.
As to the rest of the Act—
Part 8 deals with oversight arrangements for regimes in this Act and elsewhere, and
Part 9 contains miscellaneous and general provisions including amendments to sections 3 and 5 of the Intelligence Services Act 1994 and provisions about national security and combined warrants and authorisations.
Subsection (2) applies where a public authority is deciding whether—
to issue, renew or cancel a warrant under Part 2, 5, 6 or 7,
to modify such a warrant,
to approve a decision to issue, renew or modify such a warrant,
to grant, approve or cancel an authorisation under Part 3,
to give a notice in pursuance of such an authorisation or under Part 4 or section 252, 253 or 257,
to vary or revoke such a notice,
to approve a decision to give or vary a notice under Part 4 or section 252, 253 or 257,
to approve the use of criteria under section 153, 194 or 222,
to give an authorisation under section 219(3)(b),
to approve a decision to give such an authorisation, or
to apply for or otherwise seek any issue, grant, giving, modification, variation or renewal of a kind falling within paragraph (a), (b), (d), (e), (f) or (i).
The public authority must have regard to—
whether what is sought to be achieved by the warrant, authorisation or notice could reasonably be achieved by other less intrusive means,
whether the level of protection to be applied in relation to any obtaining of information by virtue of the warrant, authorisation or notice is higher because of the particular sensitivity of that information,
the public interest in the integrity and security of telecommunication systems and postal services, and
any other aspects of the public interest in the protection of privacy.
The duties under subsection (2)—
apply so far as they are relevant in the particular context, and
are subject to the need to have regard to other considerations that are also relevant in that context.
The other considerations may, in particular, include—
the interests of national security or of the economic well-being of the United Kingdom,
the public interest in preventing or detecting serious crime,
other considerations which are relevant to—
whether the conduct authorised or required by the warrant, authorisation or notice is proportionate, or
whether it is necessary to act for a purpose provided for by this Act,
the requirements of the Human Rights Act 1998, and
other requirements of public law.
For the purposes of subsection (2)(b), examples of sensitive information include—
items subject to legal privilege,
any information identifying or confirming a source of journalistic information, and
relevant confidential information within the meaning given by paragraph 2(4) of Schedule 7 (certain information held in confidence and consisting of personal records, journalistic material or communications between Members of Parliament and their constituents).
In this section “public authority” includes the relevant judicial authority (within the meaning of section 75) where the relevant judicial authority is deciding whether to approve under that section an authorisation under Part 3.
A person commits an offence if—
the person intentionally intercepts a communication in the course of its transmission by means of—
a public telecommunication system,
a private telecommunication system, or
a public postal service,
the interception is carried out in the United Kingdom, and
the person does not have lawful authority to carry out the interception.
But it is not an offence under subsection (1) for a person to intercept a communication in the course of its transmission by means of a private telecommunication system if the person—
is a person with a right to control the operation or use of the system, or
has the express or implied consent of such a person to carry out the interception.
Sections 4 and 5 contain provision about—
the meaning of “interception”, and
when interception is to be regarded as carried out in the United Kingdom.
Section 6 contains provision about when a person has lawful authority to carry out an interception.
For the meaning of the terms used in subsection (1)(a)(i) to (iii), see sections 261 and 262.
A person who is guilty of an offence under subsection (1) is liable—
on summary conviction in England and Wales, to a fine;
on summary conviction in Scotland or Northern Ireland, to a fine not exceeding the statutory maximum;
on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or to both.
No proceedings for any offence which is an offence by virtue of this section may be instituted—
in England and Wales, except by or with the consent of the Director of Public Prosecutions;
in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.
a bulk equipment interference warrant under Chapter 3 of Part 6.
For the purposes of this Act, a person intercepts a communication in the course of its transmission by means of a telecommunication system if, and only if— For the meaning of “content” in relation to a communication, see section 261(6).
the person does a relevant act in relation to the system, and
the effect of the relevant act is to make any content of the communication available, at a relevant time, to a person who is not the sender or intended recipient of the communication.
In this section “relevant act”, in relation to a telecommunication system, means—
modifying, or interfering with, the system or its operation;
monitoring transmissions made by means of the system;
monitoring transmissions made by wireless telegraphy to or from apparatus that is part of the system.
For the purposes of this section references to modifying a telecommunication system include references to attaching any apparatus to, or otherwise modifying or interfering with—
any part of the system, or
any wireless telegraphy apparatus used for making transmissions to or from apparatus that is part of the system.
In this section “relevant time”, in relation to a communication transmitted by means of a telecommunication system, means—
any time while the communication is being transmitted, and
any time when the communication is stored in or by the system (whether before or after its transmission).
For the purposes of this section, the cases in which any content of a communication is to be taken to be made available to a person at a relevant time include any case in which any of the communication is diverted or recorded at a relevant time so as to make any content of the communication available to a person after that time.
In this section “wireless telegraphy” and “wireless telegraphy apparatus” have the same meaning as in the Wireless Telegraphy Act 2006 (see sections 116 and 117 of that Act).
Section 125(3) of the Postal Services Act 2000 applies for the purposes of determining for the purposes of this Act whether a postal item is in the course of its transmission by means of a postal service as it applies for the purposes of determining for the purposes of that Act whether a postal packet is in course of transmission by post.
is exercisable in connection with the regulation of— telecommunications operators, telecommunications services or telecommunication systems, or postal operators or postal services,
For the purposes of this Act the interception of a communication is carried out in the United Kingdom if, and only if—
the relevant act or, in the case of a postal item, the interception is carried out by conduct within the United Kingdom, and
the communication is intercepted—
in the course of its transmission by means of a public telecommunication system or a public postal service, or
in the course of its transmission by means of a private telecommunication system in a case where the sender or intended recipient of the communication is in the United Kingdom.
is exercisable in connection with the conveyance or expected conveyance of any postal item into or out of the United Kingdom,
References in this Act to the interception of a communication do not include references to the interception of any communication broadcast for general reception.
References in this Act to the interception of a communication in the course of its transmission by means of a postal service do not include references to— For the meaning of “postal data”, see section 262.
any conduct that takes place in relation only to so much of the communication as consists of any postal data comprised in, included as part of, attached to, or logically associated with a communication (whether by the sender or otherwise) for the purposes of any postal service by means of which it is being or may be transmitted, or
any conduct, in connection with conduct falling within paragraph (a), that 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 such postal data.
For the purposes of this Act, a person has lawful authority to carry out an interception if, and only if—
the interception is carried out in accordance with—
a targeted interception warrant or mutual assistance warrant under Chapter 1 of Part 2, or
a bulk interception warrant under Chapter 1 of Part 6,
the interception is authorised by any of sections 44 to 52, or
in the case of a communication stored in or by a telecommunication system, the interception—
is carried out in accordance with a targeted equipment interference warrant under Part 5 or a bulk equipment interference warrant under Chapter 3 of Part 6,
is in the exercise of any statutory power that is exercised for the purpose of obtaining information or taking possession of any document or other property, or
is carried out in accordance with a court order made for that purpose.
Conduct which has lawful authority for the purposes of this Act by virtue of subsection (1)(a) or (b) is to be treated as lawful for all other purposes.
Any other conduct which— is to be treated as lawful for all purposes.
is carried out in accordance with a warrant under Chapter 1 of Part 2 or a bulk interception warrant, or
is authorised by any of sections 44 to 52,
The Investigatory Powers Commissioner may serve a monetary penalty notice on a person if conditions A and B are met.
A monetary penalty notice is a notice requiring the person on whom it is served to pay to the Investigatory Powers Commissioner (“the Commissioner”) a monetary penalty of an amount determined by the Commissioner and specified in the notice.
Condition A is that the Commissioner considers that—
the person has intercepted, in the United Kingdom, any communication in the course of its transmission by means of a public telecommunication system,
the person did not have lawful authority to carry out the interception, and
the person was not, at the time of the interception, making an attempt to act in accordance with an interception warrant which might, in the opinion of the Commissioner, explain the interception.
Condition B is that the Commissioner does not consider that the person has committed an offence under section 3(1).
The amount of a monetary penalty determined by the Commissioner under this section must not exceed £50,000.
Schedule 1 (which makes further provision about monetary penalty notices) has effect.
In this section “interception warrant” means—
a targeted interception warrant or mutual assistance warrant under Chapter 1 of Part 2, or
a bulk interception warrant under Chapter 1 of Part 6.
For the meaning of “interception” and other key expressions used in this section, see sections 4 to 6.
An interception of a communication is actionable at the suit or instance of— if conditions A to D are met.
the sender of the communication, or
the recipient, or intended recipient, of the communication,
Condition A is that the interception is carried out in the United Kingdom.
Condition B is that the communication is intercepted—
in the course of its transmission by means of a private telecommunication system, or
in the course of its transmission, by means of a public telecommunication system, to or from apparatus that is part of a private telecommunication system.
Condition C is that the interception is carried out by, or with the express or implied consent of, a person who has the right to control the operation or use of the private telecommunication system.
Condition D is that the interception is carried out without lawful authority.
For the meaning of “interception” and other key expressions used in this section, see sections 4 to 6.
This section applies to a request for any authorities of a country or territory outside the United Kingdom to carry out the interception of communications sent by, or intended for, an individual who the person making the request believes will be in the British Islands at the time of the interception.
A request to which this section applies may not be made by or on behalf of a person in the United Kingdom unless—
a targeted interception warrant has been issued under Chapter 1 of Part 2 authorising the person to whom it is addressed to secure the interception of communications sent by, or intended for, that individual, or
a targeted examination warrant has been issued under that Chapter authorising the person to whom it is addressed to carry out the selection of the content of such communications for examination.
This section applies to—
a request for assistance under an EU mutual assistance instrument, and
a request for assistance in accordance with an international mutual assistance agreement.
A request to which this section applies may not be made by or on behalf of a person in the United Kingdom to the competent authorities of a country or territory outside the United Kingdom unless a mutual assistance warrant has been issued under Chapter 1 of Part 2 authorising the making of the request.
In this section—
a targeted equipment interference warrant under Part 5;
relates to the provision of mutual assistance in connection with, or in the form of, the interception of communications,
“urgent warrant” is to be read in accordance with subsection (3) of that section.
in a case falling within subsection (1), a designated senior official, and
A relevant person who, without lawful authority, knowingly or recklessly obtains communications data from a telecommunications operator or a postal operator is guilty of an offence.
In this section “relevant person” means a person who holds an office, rank or position with a relevant public authority (within the meaning of Part 3).
Subsection (1) does not apply to a relevant person who shows that the person acted in the reasonable belief that the person had lawful authority to obtain the communications data.
A person guilty of an offence under this section is liable—
on summary conviction in England and Wales— or to both;
to imprisonment for a term not exceeding 12 months (or 6 months, if the offence was committed before the commencement of section 154(1) of the Criminal Justice Act 2003), or
to a fine,
on summary conviction in Scotland— or to both;
to imprisonment for a term not exceeding 12 months, or
to a fine not exceeding the statutory maximum,
on summary conviction in Northern Ireland— or to both;
to imprisonment for a term not exceeding 6 months, or
to a fine not exceeding the statutory maximum,
on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or to both.
Schedule 2 (which repeals certain information powers so far as they enable public authorities to secure the disclosure by a telecommunications operator or postal operator of communications data without the consent of the operator) has effect.
Any general information power which— is to be read as not enabling the public authority to secure such a disclosure.
would (apart from this subsection) enable a public authority to secure the disclosure by a telecommunications operator or postal operator of communications data without the consent of the operator, and
does not involve a court order or other judicial authorisation or warrant and is not a regulatory power or a relevant postal power,
A regulatory power or relevant postal power which enables a public authority to secure the disclosure by a telecommunications operator or postal operator of communications data without the consent of the operator may only be exercised by the public authority for that purpose if it is not possible for the authority to use a power under this Act to secure the disclosure of the data.
The Secretary of State may by regulations modify any enactment in consequence of subsection (2).
In this section “general information power” means—
in relation to disclosure by a telecommunications operator, any power to obtain information or documents (however expressed) which—
is conferred by or under an enactment other than this Act or the Regulation of Investigatory Powers Act 2000, and
does not deal (whether alone or with other matters) specifically with telecommunications operators or any class of telecommunications operators, and
in relation to disclosure by a postal operator, any power to obtain information or documents (however expressed) which—
is conferred by or under an enactment other than this Act or the Regulation of Investigatory Powers Act 2000, and
does not deal (whether alone or with other matters) specifically with postal operators or any class of postal operators.
In this section— and references to powers include duties (and references to enabling and exercising are to be read as including references to requiring and performing).
“power” includes part of a power,
“regulatory power” means any power to obtain information or documents (however expressed) which—
An intelligence service may not, for the purpose of obtaining communications, private information or equipment data, engage in conduct which could be authorised by an equipment interference warrant except under the authority of such a warrant if—
the intelligence service considers that the conduct would (unless done under lawful authority) constitute one or more offences under sections 1 to 3A of the Computer Misuse Act 1990 (computer misuse offences), and
there is a British Islands connection.
For the purpose of this section, there is a British Islands connection if—
any of the conduct would take place in the British Islands (regardless of the location of the equipment which would, or may, be interfered with),
the intelligence service believes that any of the equipment which would, or may, be interfered with would, or may, be in the British Islands at some time while the interference is taking place, or
a purpose of the interference is to obtain—
communications sent by, or to, a person who is, or whom the intelligence service believes to be, for the time being in the British Islands,
private information relating to an individual who is, or whom the intelligence service believes to be, for the time being in the British Islands, or
equipment data which forms part of, or is connected with, communications or private information falling within sub-paragraph (i) or (ii).
This section does not restrict the ability of the head of an intelligence service to apply for an equipment interference warrant in cases where—
the intelligence service does not consider that the conduct for which it is seeking authorisation would (unless done under lawful authority) constitute one or more offences under sections 1 to 3A of the Computer Misuse Act 1990, or
there is no British Islands connection.
In this section—
“high security psychiatric services” has the same meaning as in section 4 of the National Health Service Act 2006;
“equipment interference warrant” means—
in a case falling within subsection (2), a Judicial Commissioner,
A person may not, for the purpose of obtaining communications, private information or equipment data, make an application under section 93 of the Police Act 1997 for authorisation to engage in conduct which could be authorised by a targeted equipment interference warrant under Part 5 if the applicant considers that the conduct would (unless done under lawful authority) constitute one or more offences under sections 1 to 3A of the Computer Misuse Act 1990 (computer misuse offences).
In this section, “communications”, “private information” and “equipment data” have the same meaning as in Part 5 (see section 135).
There are three kinds of warrant that may be issued under this Chapter—
targeted interception warrants (see subsection (2)),
targeted examination warrants (see subsection (3)), and
mutual assistance warrants (see subsection (4)).
A targeted interception warrant is a warrant which authorises or requires the person to whom it is addressed to secure, by any conduct described in the warrant, any one or more of the following—
the interception, in the course of their transmission by means of a postal service or telecommunication system, of communications described in the warrant;
the obtaining of secondary data from communications transmitted by means of a postal service or telecommunication system and described in the warrant (see section 16);
the disclosure, in any manner described in the warrant, of anything obtained under the warrant to the person to whom the warrant is addressed or to any person acting on that person’s behalf.
A targeted examination warrant is a warrant which authorises the person to whom it is addressed to carry out the selection of relevant content for examination, in breach of the prohibition in section 152(4) (prohibition on seeking to identify communications of individuals in the British Islands). In this Part “relevant content”, in relation to a targeted examination warrant, means any content of communications intercepted by an interception authorised or required by a bulk interception warrant under Chapter 1 of Part 6.
A mutual assistance warrant is a warrant which authorises or requires the person to whom it is addressed to secure, by any conduct described in the warrant, any one or more of the following—
the making of a request, in accordance with an EU mutual assistance instrument or an international mutual assistance agreement, for the provision of any assistance of a kind described in the warrant in connection with, or in the form of, an interception of communications;
the provision to the competent authorities of a country or territory outside the United Kingdom, in accordance with such an instrument or agreement, of any assistance of a kind described in the warrant in connection with, or in the form of, an interception of communications;
the disclosure, in any manner described in the warrant, of anything obtained under the warrant to the person to whom the warrant is addressed or to any person acting on that person’s behalf.
A targeted interception warrant or mutual assistance warrant also authorises the following conduct (in addition to the conduct described in the warrant)—
any conduct which it is necessary to undertake in order to do what is expressly authorised or required by the warrant, including—
the interception of communications not described in the warrant, and
conduct for obtaining secondary data from such communications;
any 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 in giving effect to the warrant;
any conduct for obtaining related systems data from any postal operator or telecommunications operator.
For the purposes of subsection (5)(c)—
For provision enabling the combination of targeted interception warrants with certain other warrants or authorisations (including targeted examination warrants), see Schedule 8.
This section has effect for the purposes of this Part.
In relation to a communication transmitted by means of a postal service, references to obtaining secondary data from the communication are references to obtaining such data in the course of the transmission of the communication (as to which, see section 4(7)).
In relation to a communication transmitted by means of a telecommunication system, references to obtaining secondary data from the communication are references to obtaining such data—
while the communication is being transmitted, or
at any time when the communication is stored in or by the system (whether before or after its transmission).
“Secondary data”—
in relation to a communication transmitted by means of a postal service, means any data falling within subsection (5);
in relation to a communication transmitted by means of a telecommunication system, means any data falling within subsection (5) or (6).
The data falling within this subsection is systems data which is comprised in, included as part of, attached to or logically associated with the communication (whether by the sender or otherwise).
The data falling within this subsection is identifying data which—
is comprised in, included as part of, attached to or logically associated with the communication (whether by the sender or otherwise),
is capable of being logically separated from the remainder of the communication, and
if it were so separated, would not reveal anything of what might reasonably be considered to be the meaning (if any) of the communication, disregarding any meaning arising from the fact of the communication or from any data relating to the transmission of the communication.
For the meaning of “systems data” and “identifying data”, see section 263.
A warrant under this Chapter may relate to—
a particular person or organisation, or
a single set of premises.
In addition, a targeted interception warrant or targeted examination warrant may relate to—
a group of persons who share a common purpose or who carry on, or may carry on, a particular activity;
more than one person or organisation, or more than one set of premises, where the conduct authorised or required by the warrant is for the purposes of a single investigation or operation;
testing or training activities.
In subsection (2)(c) “testing or training activities” means—
in relation to a targeted interception warrant—
the testing, maintenance or development of apparatus, systems or other capabilities relating to the interception of communications in the course of their transmission by means of a telecommunication system or to the obtaining of secondary data from communications transmitted by means of such a system, or
the training of persons who carry out, or are likely to carry out, such interception or the obtaining of such data;
in relation to a targeted examination warrant—
the testing, maintenance or development of apparatus, systems or other capabilities relating to the selection of relevant content for examination, or
the training of persons who carry out, or are likely to carry out, the selection of relevant content for examination.
Each of the following is an “intercepting authority” for the purposes of this Part—
a person who is the head of an intelligence service;
the Director General of the National Crime Agency;
the Commissioner of Police of the Metropolis;
the Chief Constable of the Police Service of Northern Ireland;
the chief constable of the Police Service of Scotland;
the Commissioners for Her Majesty’s Revenue and Customs;
the Chief of Defence Intelligence;
a person who is the competent authority of a country or territory outside the United Kingdom for the purposes of an EU mutual assistance instrument or an international mutual assistance agreement.
For the meaning of “head of an intelligence service”, see section 263.
An application for the issue of a warrant under this Chapter may only be made on behalf of an intercepting authority by a person holding office under the Crown.
The Secretary of State may, on an application made by or on behalf of an intercepting authority mentioned in section 18(1)(a) to (g), issue a targeted interception warrant if— This is subject to subsection (4).
the Secretary of State considers that the warrant is necessary on grounds falling within section 20,
the Secretary of State considers that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct,
the Secretary of State considers that satisfactory arrangements made for the purposes of sections 53 and 54 (safeguards relating to disclosure etc.) are in force in relation to the warrant, and
except where the Secretary of State considers that there is an urgent need to issue the warrant, the decision to issue the warrant has been approved by a Judicial Commissioner.
The Secretary of State may, on an application made by or on behalf of the head of an intelligence service, issue a targeted examination warrant if— This is subject to subsection (4).
the Secretary of State considers that the warrant is necessary on grounds falling within section 20,
the Secretary of State considers that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct,
the Secretary of State considers that the warrant is or may be necessary to authorise the selection of relevant content for examination in breach of the prohibition in section 152(4) (prohibition on seeking to identify communications of individuals in the British Islands), and
except where the Secretary of State considers that there is an urgent need to issue the warrant, the decision to issue the warrant has been approved by a Judicial Commissioner.
The Secretary of State may, on an application made by or on behalf of an intercepting authority, issue a mutual assistance warrant if— This is subject to subsection (4).
the Secretary of State considers that the warrant is necessary on grounds falling within section 20,
the Secretary of State considers that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct,
the Secretary of State considers that satisfactory arrangements made for the purposes of sections 53 and 54 (safeguards relating to disclosure etc.) are in force in relation to the warrant, and
except where the Secretary of State considers that there is an urgent need to issue the warrant, the decision to issue the warrant has been approved by a Judicial Commissioner.
The Secretary of State may not issue a warrant under this section if— For the power of the Scottish Ministers to issue warrants under this Chapter, see section 21.
the application is a relevant Scottish application (see section 22), and
in the case of an application for a targeted interception warrant or a targeted examination warrant, the Secretary of State considers that the warrant is necessary only for the purpose of preventing or detecting serious crime.
But subsection (4) does not prevent the Secretary of State from doing anything under this section for the purposes specified in section 2(2) of the European Communities Act 1972.
This section has effect for the purposes of this Part.
A targeted interception warrant or targeted examination warrant is necessary on grounds falling within this section if it is necessary—
in the interests of national security,
for the purpose of preventing or detecting serious crime, or
in the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security (but see subsection (4)).
A mutual assistance warrant is necessary on grounds falling within this section if—
it is necessary for the purpose of giving effect to the provisions of an EU mutual assistance instrument or an international mutual assistance agreement, and
the circumstances appear to the Secretary of State to be equivalent to those in which the Secretary of State would issue a warrant by virtue of subsection (2)(b).
A warrant may be considered necessary as mentioned in subsection (2)(c) only if the information which it is considered necessary to obtain is information relating to the acts or intentions of persons outside the British Islands.
A warrant may not be considered necessary on grounds falling within this section if it is considered necessary only for the purpose of gathering evidence for use in any legal proceedings.
The fact that the information which would be obtained under a warrant relates to the activities in the British Islands of a trade union is not, of itself, sufficient to establish that the warrant is necessary on grounds falling within this section.
The Scottish Ministers may, on an application made by or on behalf of an intercepting authority mentioned in section 18(1)(a) to (g), issue a targeted interception warrant if—
the application is a relevant Scottish application (see section 22),
the Scottish Ministers consider that the warrant is necessary on grounds falling within subsection (4),
the Scottish Ministers consider that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct,
the Scottish Ministers consider that satisfactory arrangements made for the purposes of sections 53 and 54 (safeguards relating to disclosure etc.) are in force in relation to the warrant, and
except where the Scottish Ministers consider that there is an urgent need to issue the warrant, the decision to issue the warrant has been approved by a Judicial Commissioner.
The Scottish Ministers may, on an application made by or on behalf of the head of an intelligence service, issue a targeted examination warrant if—
the application is a relevant Scottish application,
the Scottish Ministers consider that the warrant is necessary on grounds falling within subsection (4),
the Scottish Ministers consider that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct,
the Scottish Ministers consider that the warrant is or may be necessary to authorise the selection of relevant content for examination in breach of the prohibition in section 152(4) (prohibition on seeking to identify communications of individuals in the British Islands), and
except where the Scottish Ministers consider that there is an urgent need to issue the warrant, the decision to issue the warrant has been approved by a Judicial Commissioner.
The Scottish Ministers may, on an application made by or on behalf of an intercepting authority, issue a mutual assistance warrant if—
the application is a relevant Scottish application,
the Scottish Ministers consider that the warrant is necessary on grounds falling within subsection (4),
the Scottish Ministers consider that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct,
the Scottish Ministers consider that satisfactory arrangements made for the purposes of sections 53 and 54 (safeguards relating to disclosure etc.) are in force in relation to the warrant, and
except where the Scottish Ministers consider that there is an urgent need to issue the warrant, the decision to issue the warrant has been approved by a Judicial Commissioner.
A warrant is necessary on grounds falling within this subsection if—
in the case of a targeted interception warrant or targeted examination warrant, it is necessary for the purposes of preventing or detecting serious crime, and
in the case of a mutual assistance warrant—
it is necessary for the purpose of giving effect to the provisions of an EU mutual assistance instrument or an international mutual assistance agreement, and
the circumstances appear to the Scottish Ministers to be equivalent to those in which the Scottish Ministers would issue a warrant by virtue of paragraph (a).
A warrant may not be considered necessary on grounds falling within subsection (4) if it is considered necessary only for the purpose of gathering evidence for use in any legal proceedings.
The fact that the information which would be obtained under a warrant relates to the activities in the British Islands of a trade union is not, of itself, sufficient to establish that the warrant is necessary on grounds falling within subsection (4).
An application for the issue of a warrant under this Chapter is a “relevant Scottish application” for the purposes of this Chapter if any of conditions A to C is met. In this section “the applicant” means the person by whom, or on whose behalf, the application is made.
Condition A is that—
the application is for the issue of a targeted interception warrant or a targeted examination warrant, and
the warrant, if issued, would relate to—
a person who is in Scotland, or is reasonably believed by the applicant to be in Scotland, at the time of the issue of the warrant, or
premises which are in Scotland, or are reasonably believed by the applicant to be in Scotland, at that time.
Condition B is that—
the application is for the issue of a mutual assistance warrant which, if issued, would authorise or require—
the making of a request falling within section 15(4)(a), or
the making of such a request and disclosure falling within section 15(4)(c), and
the application—
is made by, or on behalf of, the chief constable of the Police Service of Scotland, or
is made by, or on behalf of, the Commissioners for Her Majesty’s Revenue and Customs or the Director General of the National Crime Agency for the purpose of preventing or detecting serious crime in Scotland.
Condition C is that—
the application is for the issue of a mutual assistance warrant which, if issued, would authorise or require—
the provision of assistance falling within section 15(4)(b), or
the provision of such assistance and disclosure falling within section 15(4)(c), and
the warrant, if issued, would relate to—
a person who is in Scotland, or is reasonably believed by the applicant to be in Scotland, at the time of the issue of the warrant, or
premises which are in Scotland, or are reasonably believed by the applicant to be in Scotland, at that time.
In deciding whether to approve a person’s decision to issue a warrant under this Chapter, a Judicial Commissioner must review the person’s conclusions as to the following matters—
whether the warrant is necessary on relevant grounds (see subsection (3)), and
whether the conduct that would be authorised by the warrant is proportionate to what is sought to be achieved by that conduct.
In doing so, the Judicial Commissioner must—
apply the same principles as would be applied by a court on an application for judicial review, and
consider the matters referred to in subsection (1) with a sufficient degree of care as to ensure that the Judicial Commissioner complies with the duties imposed by section 2 (general duties in relation to privacy).
In subsection (1)(a) “relevant grounds” means—
in the case of a decision of the Secretary of State to issue a warrant, grounds falling within section 20;
in the case of a decision of the Scottish Ministers to issue a warrant, grounds falling within section 21(4).
Where a Judicial Commissioner refuses to approve a person’s decision to issue a warrant under this Chapter, the Judicial Commissioner must give the person written reasons for the refusal.
Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, refuses to approve a person’s decision to issue a warrant under this Chapter, the person may ask the Investigatory Powers Commissioner to decide whether to approve the decision to issue the warrant.
This section applies where—
a warrant under this Chapter is issued without the approval of a Judicial Commissioner, and
the person who decided to issue the warrant considered that there was an urgent need to issue it.
The person who decided to issue the warrant must inform a Judicial Commissioner that it has been issued.
The Judicial Commissioner must, before the end of the relevant period— “The relevant period” means the period ending with the third working day after the day on which the warrant was issued.
decide whether to approve the decision to issue the warrant, and
notify the person of the Judicial Commissioner’s decision.
If a Judicial Commissioner refuses to approve the decision to issue a warrant, the warrant— and section 23(5) does not apply in relation to the refusal to approve the decision.
ceases to have effect (unless already cancelled), and
may not be renewed,
Section 25 contains further provision about what happens if a Judicial Commissioner refuses to approve the decision to issue a warrant.
This section applies where under section 24(3) a Judicial Commissioner refuses to approve the decision to issue a warrant.
The person to whom the warrant was addressed must, so far as is reasonably practicable, secure that anything in the process of being done under the warrant stops as soon as possible.
The Judicial Commissioner may—
direct that any of the material obtained under the warrant is destroyed;
impose conditions as to the use or retention of any of that material;
in the case of a targeted examination warrant, impose conditions as to the use of any relevant content selected for examination under the warrant.
The Judicial Commissioner—
may require an affected party to make representations about how the Judicial Commissioner should exercise any function under subsection (3), and
must have regard to any such representations made by an affected party (whether or not as a result of a requirement imposed under paragraph (a)).
Each of the following is an “affected party” for the purposes of subsection (4)—
the person who decided to issue the warrant;
the person to whom the warrant was addressed.
The person who decided to issue the warrant may ask the Investigatory Powers Commissioner to review a decision made by any other Judicial Commissioner under subsection (3).
On a review under subsection (6), the Investigatory Powers Commissioner may—
confirm the Judicial Commissioner’s decision, or
make a fresh determination.
Nothing in this section or section 24 affects the lawfulness of—
anything done under the warrant before it ceases to have effect;
if anything is in the process of being done under the warrant when it ceases to have effect—
anything done before that thing could be stopped, or
anything done which it is not reasonably practicable to stop.
This section applies where—
an application is made to the Secretary of State for the issue of a targeted interception warrant or a targeted examination warrant, and
the purpose of the warrant is—
in the case of a targeted interception warrant, to authorise or require the interception of communications sent by, or intended for, a person who is a member of a relevant legislature, or
in the case of a targeted examination warrant, to authorise the selection for examination of the content of such communications.
The Secretary of State may not issue the warrant without the approval of the Prime Minister.
In this section “member of a relevant legislature” means—
a member of either House of Parliament;
a member of the Scottish Parliament;
a member of the National Assembly for Wales;
a member of the Northern Ireland Assembly;
a member of the European Parliament elected for the United Kingdom.
Subsections (2) to (5) apply if—
an application is made by or on behalf of an intercepting authority for a warrant under this Chapter, and
the purpose, or one of the purposes, of the warrant is—
in the case of a targeted interception warrant or mutual assistance warrant, to authorise or require the interception of items subject to legal privilege, or
in the case of a targeted examination warrant, to authorise the selection of such items for examination.
The application must contain a statement that the purpose, or one of the purposes, of the warrant is to authorise or require the interception, or (in the case of a targeted examination warrant) the selection for examination, of items subject to legal privilege.
In deciding whether to issue the warrant, the person to whom the application is made must have regard to the public interest in the confidentiality of items subject to legal privilege.
The person to whom the application is made may issue the warrant only if the person considers—
that there are exceptional and compelling circumstances that make it necessary to authorise or require the interception, or (in the case of a targeted examination warrant) the selection for examination, of items subject to legal privilege, and
that the arrangements made for the purposes of section 53 or (as the case may be) section 150 (safeguards relating to retention and disclosure of material) include specific arrangements for the handling, retention, use and destruction of such items.
But the warrant may not be issued if it is considered necessary only as mentioned in section 20(2)(c).
For the purposes of subsection (4)(a), there cannot be exceptional and compelling circumstances that make it necessary to authorise or require the interception, or the selection for examination, of items subject to legal privilege unless—
the public interest in obtaining the information that would be obtained by the warrant outweighs the public interest in the confidentiality of items subject to legal privilege,
there are no other means by which the information may reasonably be obtained, and
in the case of a warrant considered necessary as mentioned in section 20(2)(b) or (3) or (as the case may be) 21(4), obtaining the information is necessary for the purpose of preventing death or significant injury.
Subsections (8) and (9) apply if—
an application is made by or on behalf of an intercepting authority for a warrant under this Chapter,
the intercepting authority considers that the relevant communications are likely to include items subject to legal privilege, and
subsections (2) to (5) do not apply.
The application must contain—
a statement that the intercepting authority considers that the relevant communications are likely to include items subject to legal privilege, and
an assessment of how likely it is that the relevant communications will include such items.
The person to whom the application is made may issue the warrant only if the person considers that the arrangements made for the purposes of section 53 or (as the case may be) section 150 include specific arrangements for the handling, retention, use and destruction of items subject to legal privilege.
In this section “relevant communications” means—
in relation to a targeted interception warrant or mutual assistance warrant, any communications the interception of which is authorised or required by the warrant;
in relation to a targeted examination warrant, any communications the content of which the warrant authorises to be selected for examination.
Subsections (12) and (13) apply if—
an application is made by or on behalf of an intercepting authority for a warrant under this Chapter,
the purpose, or one of the purposes, of the warrant is—
in the case of a targeted interception warrant or mutual assistance warrant, to authorise or require the interception of communications that, if they were not made with the intention of furthering a criminal purpose, would be items subject to legal privilege, or
in the case of a targeted examination warrant, to authorise the selection of such communications for examination, and
the intercepting authority considers that the communications (“the targeted communications”) are likely to be communications made with the intention of furthering a criminal purpose.
The application must—
contain a statement that the purpose, or one of the purposes, of the warrant is to authorise or require the interception, or (in the case of a targeted examination warrant) the selection for examination, of communications that, if they were not made with the intention of furthering a criminal purpose, would be items subject to legal privilege, and
set out the reasons for believing that the targeted communications are likely to be communications made with the intention of furthering a criminal purpose.
The person to whom the application is made may issue the warrant only if the person considers that the targeted communications are likely to be communications made with the intention of furthering a criminal purpose.
This section applies if—
an application is made by or on behalf of an intercepting authority for a warrant under this Chapter, and
the purpose, or one of the purposes, of the warrant is—
in the case of a targeted interception warrant or mutual assistance warrant, to authorise or require the interception of communications which the intercepting authority believes will be communications containing confidential journalistic material, or
in the case of a targeted examination warrant, to authorise the selection for examination of journalistic material which the intercepting authority believes is confidential journalistic material.
The application must contain a statement that the purpose, or one of the purposes, of the warrant is—
in the case of a targeted interception warrant or mutual assistance warrant, to authorise or require the interception of communications which the intercepting authority believes will be communications containing confidential journalistic material, or
in the case of a targeted examination warrant, to authorise the selection for examination of journalistic material which the intercepting authority believes is confidential journalistic material.
The person to whom the application is made may issue the warrant only if the person considers that the arrangements made for the purposes of section 53 or (as the case may be) section 150 (safeguards relating to retention and disclosure of material) include specific arrangements for the handling, retention, use and destruction of communications containing confidential journalistic material.
For the meaning of “journalistic material” and “confidential journalistic material”, see section 264.
This section applies if— (For the meaning of “source of journalistic information”, see section 263(1).)
an application is made by or on behalf of an intercepting authority for a warrant under this Chapter, and
the purpose, or one of the purposes, of the warrant is to identify or confirm a source of journalistic information.
The application must contain a statement that the purpose, or one of the purposes, of the warrant is to identify or confirm a source of journalistic information.
The person to whom the application is made may issue the warrant only if the person considers that the arrangements made for the purposes of section 53 or (as the case may be) section 150 (safeguards relating to retention and disclosure of material) include specific arrangements for the handling, retention, use and destruction of communications that identify sources of journalistic information.
The decision to issue a warrant under this Chapter must be taken personally by—
the Secretary of State, or
in the case of a warrant to be issued by the Scottish Ministers, a member of the Scottish Government.
Before a warrant under this Chapter is issued, it must be signed by the person who has taken the decision to issue it.
Subsections (1) and (2) are subject to—
subsection (4), and
section 40 (special rules for certain mutual assistance warrants).
If it is not reasonably practicable for a warrant to be signed by the person who has taken the decision to issue it, the warrant may be signed by a senior official designated by the Secretary of State or (as the case may be) the Scottish Ministers for that purpose.
In such a case, the warrant must contain a statement that—
it is not reasonably practicable for the warrant to be signed by the person who took the decision to issue it, and
the Secretary of State or (as the case may be) a member of the Scottish Government has personally and expressly authorised the issue of the warrant.
In this section “senior official” means—
in the case of a warrant to be issued by the Secretary of State, a member of the Senior Civil Service or a member of the Senior Management Structure of Her Majesty’s Diplomatic Service;
in the case of a warrant to be issued by the Scottish Ministers, a member of the staff of the Scottish Administration who is a member of the Senior Civil Service.
A warrant under this Chapter must contain a provision stating whether it is a targeted interception warrant, a targeted examination warrant or a mutual assistance warrant.
A warrant issued under this Chapter must be addressed to the person by whom, or on whose behalf, the application for the warrant was made.
A warrant that relates to a particular person or organisation, or to a single set of premises, must name or describe that person or organisation or those premises.
A warrant that relates to a group of persons who share a common purpose or who carry on (or may carry on) a particular activity must—
describe that purpose or activity, and
name or describe as many of those persons as it is reasonably practicable to name or describe.
A warrant that relates to more than one person or organisation, or more than one set of premises, where the conduct authorised or required by the warrant is for the purposes of a single investigation or operation, must—
describe the investigation or operation, and
name or describe as many of those persons or organisations, or as many of those sets of premises, as it is reasonably practicable to name or describe.
A warrant that relates to any testing or training activities must— “Testing or training activities” has the meaning given by section 17(3).
describe those activities, and
name or describe as many of the persons within subsection (7) as it is reasonably practicable to name or describe.
A person is within this subsection if—
in the case of a targeted interception warrant—
communications from, or intended for, the person will or may be intercepted by an interception authorised or required by the warrant, or
secondary data will or may be obtained under the warrant from communications from, or intended for, the person;
in the case of a targeted examination warrant, the content of communications from, or intended for, the person may be selected for examination under the warrant.
Where— the warrant must specify the addresses, numbers, apparatus, or other factors, or combination of factors, that are to be used for identifying the communications.
a targeted interception warrant or mutual assistance warrant authorises or requires the interception of communications described in the warrant, or the obtaining of secondary data from such communications, or
a targeted examination warrant authorises the selection of the content of communications for examination,
Any factor, or combination of factors, specified in accordance with subsection (8) must be one that identifies communications which are likely to be or to include—
communications from, or intended for, any person or organisation named or described in the warrant, or
communications originating on, or intended for transmission to, any premises named or described in the warrant.
In this section any reference to communications from, or intended for, a person or organisation includes communications from, or intended for, anything owned, controlled or operated by that person or organisation.
A warrant under this Chapter ceases to have effect at the end of the relevant period (see subsection (2)), unless—
it is renewed before the end of that period (see section 33), or
it is cancelled or otherwise ceases to have effect before the end of that period (see sections 24 and 39).
In this section “the relevant period”—
in the case of an urgent warrant which has not been renewed, means the period ending with the fifth working day after the day on which the warrant was issued;
in any other case, means the period of 6 months beginning with—
the day on which the warrant was issued, or
in the case of a warrant that has been renewed, the day after the day at the end of which the warrant would have ceased to have effect if it had not been renewed.
For the purposes of subsection (2)(a) a warrant is an “urgent warrant” if—
the warrant was issued without the approval of a Judicial Commissioner, and
the person who decided to issue the warrant considered that there was an urgent need to issue it.
If the renewal conditions are met, a warrant issued under this Chapter may be renewed, at any time during the renewal period, by an instrument issued by the appropriate person (see subsection (3)).
The renewal conditions are—
that the appropriate person considers that the warrant continues to be necessary on any relevant grounds (see subsection (4)),
that the appropriate person considers that the conduct that would be authorised by the renewed warrant continues to be proportionate to what is sought to be achieved by that conduct,
that, in the case of a targeted examination warrant, the appropriate person considers that the warrant continues to be necessary to authorise the selection of relevant content for examination in breach of the prohibition in section 152(4), and
that the decision to renew the warrant has been approved by a Judicial Commissioner.
The appropriate person is—
in the case of a warrant issued by the Secretary of State, the Secretary of State;
in the case of a warrant issued by the Scottish Ministers, a member of the Scottish Government.
“Relevant grounds” means—
in the case of a warrant issued by the Secretary of State, grounds falling within section 20;
in the case of a warrant issued by the Scottish Ministers, grounds falling within section 21(4).
“The renewal period” means—
in the case of an urgent warrant which has not been renewed, the relevant period;
in any other case, the period of 30 days ending with the day at the end of which the warrant would otherwise cease to have effect.
The decision to renew a warrant must be taken personally by the appropriate person, and the instrument renewing the warrant must be signed by that person.
Section 23 (approval of warrants by Judicial Commissioners) applies in relation to a decision to renew a warrant as it applies in relation to a decision to issue a warrant (and accordingly any reference in that section to the person who decided to issue the warrant is to be read as a reference to the person who decided to renew it).
Sections 26 to 29 (additional safeguards) apply in relation to a decision to renew a warrant as they apply in relation to a decision to issue a warrant.
In this section—
“hospital premises” has the same meaning as in section 4(3) of that Act;
in the case of a short-term holding facility, rules made under, or having effect by virtue of, section 157 of that Act;
This section is subject to section 40 (special rules for certain mutual assistance warrants).
The provisions of a warrant issued under this Chapter may be modified at any time by an instrument issued by the person making the modification.
The only modifications that may be made under this section are—
adding, varying or removing the name or description of a person, organisation or set of premises to which the warrant relates, and
adding, varying or removing any factor specified in the warrant in accordance with section 31(8).
But a warrant may not be modified as mentioned in subsection (2)(a) if it relates only to a particular person or organisation, or to a single set of premises, as mentioned in section 17(1).
The decision to modify the provisions of a warrant must be taken personally by the person making the modification, and the instrument making the modification must be signed by that person. This is subject to section 36(8).
In this Chapter—
a modification adding or varying a name or description as mentioned in paragraph (a) of subsection (2) is referred to as a “major modification”, and
any other modification within that subsection is referred to as a “minor modification”.
Nothing in this section applies in relation to modifying the provisions of a warrant in a way which does not affect the conduct authorised or required by it.
Sections 35 to 38 contain further provision about making modifications under this section.
A major modification may be made by—
the Secretary of State, in the case of a warrant issued by the Secretary of State,
a member of the Scottish Government, in the case of a warrant issued by the Scottish Ministers, or
a senior official acting on behalf of the Secretary of State or (as the case may be) the Scottish Ministers.
A minor modification may be made by—
the Secretary of State, in the case of a warrant issued by the Secretary of State,
a member of the Scottish Government, in the case of a warrant issued by the Scottish Ministers,
a senior official acting on behalf of the Secretary of State or (as the case may be) the Scottish Ministers,
the person to whom the warrant is addressed, or
a person who holds a senior position in the same public authority as the person mentioned in paragraph (d).
But if a person within subsection (2)(d) or (e) considers that there is an urgent need to make a major modification, that person (as well as a person within subsection (1)) may do so. Section 38 contains provision about the approval of major modifications made in urgent cases.
Subsections (1) and (3) are subject to section 36(5) and (6) (special rules where any of sections 26 to 29 applies in relation to the making of a major modification).
Subsections (2)(d) and (e) and (3) do not apply in the case of a mutual assistance warrant addressed to a person falling within section 18(1)(h) (competent authorities of overseas countries or territories).
For the purposes of subsection (2)(e) a person holds a senior position in a public authority if—
in the case of any of the intelligence services—
the person is a member of the Senior Civil Service or a member of the Senior Management Structure of Her Majesty’s Diplomatic Service, or
the person holds a position in the intelligence service of equivalent seniority to such a person;
in the case of the National Crime Agency, the person is a National Crime Agency officer of grade 2 or above;
in the case of the metropolitan police force, the Police Service of Northern Ireland or the Police Service of Scotland, a person is of or above the rank of superintendent;
in the case of Her Majesty’s Revenue and Customs, the person is a member of the Senior Civil Service;
in the case of the Ministry of Defence—
the person is a member of the Senior Civil Service, or
the person is of or above the rank of brigadier, commodore or air commodore.
In this section “senior official” means—
in the case of a warrant issued by the Secretary of State, a member of the Senior Civil Service or a member of the Senior Management Structure of Her Majesty’s Diplomatic Service;
in the case of a warrant issued by the Scottish Ministers, a member of the staff of the Scottish Administration who is a member of the Senior Civil Service.
A person may make a modification within subsection (2) only if the person considers—
that the modification is necessary on any relevant grounds (see subsection (3)), and
that the conduct authorised by the modification is proportionate to what is sought to be achieved by that conduct.
The modifications within this subsection are—
a major modification adding the name or description of a person, organisation or set of premises to which the warrant relates, and
a minor modification adding any factor specified in the warrant in accordance with section 31(8).
In subsection (1)(a) “relevant grounds” means— and for the purposes of subsection (1) any reference to the Secretary of State in section 20(3)(b) or the Scottish Ministers in section 21(4)(b) is to be read as a reference to the person making the modification.
in the case of a warrant issued by the Secretary of State, grounds falling within section 20;
in the case of a warrant issued by the Scottish Ministers, grounds falling within section 21(4);
Sections 26 to 29 (additional safeguards) apply in relation to the making of a major modification within subsection (2)(a) above as they apply in relation to the issuing of a warrant.
Where section 26 applies in relation to the making of a major modification—
the modification must be made by the Secretary of State, and
the modification has effect only if the decision to make the modification has been approved by a Judicial Commissioner.
Where section 27, 28 or 29 applies in relation to the making of a major modification—
the modification must be made by—
the Secretary of State or (in the case of a warrant issued by the Scottish Ministers) a member of the Scottish Government, or
if a senior official acting on behalf of a person within sub-paragraph (i) considers that there is an urgent need to make the modification, that senior official, and
except where the person making the modification considers that there is an urgent need to make it, the modification has effect only if the decision to make the modification has been approved by a Judicial Commissioner.
In a case where any of sections 26 to 29 applies in relation to the making of a major modification, section 23 (approval of warrants by Judicial Commissioners) applies in relation to the decision to make the modification as it applies in relation to a decision to issue a warrant, but as if— Section 38 contains provision about the approval of major modifications made in urgent cases.
the references in subsection (1)(a) and (b) of that section to the warrant were references to the modification,
any reference to the person who decided to issue the warrant were a reference to the person who decided to make the modification, and
subsection (3) of this section applied for the purposes of subsection (1) of that section as it applies for the purposes of subsection (1) of this section.
If, in a case where any of sections 26 to 29 applies in relation to the making of a major modification, it is not reasonably practicable for the instrument making the modification to be signed by the Secretary of State or (as the case may be) a member of the Scottish Government in accordance with section 34(4), the instrument may be signed by a senior official designated by the Secretary of State or (as the case may be) the Scottish Ministers for that purpose.
In such a case, the instrument making the modification must contain a statement that—
it is not reasonably practicable for the instrument to be signed by the person who took the decision to make the modification, and
the Secretary of State or (as the case may be) a member of the Scottish Government has personally and expressly authorised the making of the modification.
If at any time a person mentioned in section 35(2) considers that any factor specified in a warrant in accordance with section 31(8) 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 31(9)(a) or (b), the person must modify the warrant by removing that factor.
In this section “senior official” has the same meaning as in section 35.
As soon as is reasonably practicable after a person makes a major modification of a warrant under this Chapter, a Judicial Commissioner must be notified of the modification and the reasons for making it.
But subsection (1) does not apply where—
the modification is made by virtue of section 35(3), or
any of sections 26 to 29 applies in relation to the making of the modification.
Where a major modification is made by a senior official in accordance with section 35(1) or section 36(6)(a)(ii), the Secretary of State or (in the case of a warrant issued by the Scottish Ministers) a member of the Scottish Government must be notified personally of the modification and the reasons for making it.
In this section “senior official” has the same meaning as in section 35.
This section applies where a person makes a major modification of a warrant under this Chapter by virtue of section 35(3).
This section also applies where—
section 27, 28 or 29 applies in relation to the making of a major modification of a warrant under this Chapter,
the person making the modification does so without the approval of a Judicial Commissioner, and
the person considered that there was an urgent need to make the modification.
The person who made the modification must inform the appropriate person that it has been made.
In this section—
The appropriate person must, before the end of the relevant period— “The relevant period” means the period ending with the third working day after the day on which the modification was made.
decide whether to approve the decision to make the modification, and
notify the person of the appropriate person’s decision.
As soon as is reasonably practicable after a designated senior official makes a decision under subsection (5)—
a Judicial Commissioner must be notified of—
the decision, and
if the senior official has decided to approve the decision to make the modification, the modification in question, and
the Secretary of State or (in the case of a warrant issued by the Scottish Ministers) a member of the Scottish Government must be notified personally of the matters mentioned in paragraph (a)(i) and (ii).
If the appropriate person refuses to approve the decision to make the modification— and, in a case falling within subsection (2) above, section 23(5) does not apply in relation to the refusal to approve the decision.
the warrant (unless it no longer has effect) has effect as if the modification had not been made, and
the person to whom the warrant is addressed must, so far as is reasonably practicable, secure that anything in the process of being done under the warrant by virtue of that modification stops as soon as possible,
Nothing in this section affects the lawfulness of—
anything done under the warrant by virtue of the modification before the modification ceases to have effect;
if anything is in the process of being done under the warrant by virtue of the modification when the modification ceases to have effect—
anything done before that thing could be stopped, or
anything done which it is not reasonably practicable to stop.
Any of the appropriate persons may cancel a warrant issued under this Chapter at any time.
If any of the appropriate persons considers that— the person must cancel the warrant.
a warrant issued under this Chapter is no longer necessary on any relevant grounds, or
the conduct authorised by the warrant is no longer proportionate to what is sought to be achieved by that conduct,
In subsection (2)(a) “relevant grounds” means—
in the case of a warrant issued by the Secretary of State, grounds falling within section 20;
in the case of a warrant issued by the Scottish Ministers, grounds falling within section 21(4).
For the purpose of this section “the appropriate persons” are—
in the case of a warrant issued by the Secretary of State, the Secretary of State or a senior official acting on behalf of the Secretary of State;
in the case of a warrant issued by the Scottish Ministers, a member of the Scottish Government or a senior official acting on behalf of the Scottish Ministers.
Where a warrant is cancelled under this section, the person to whom the warrant was addressed must, so far as is reasonably practicable, secure that anything in the process of being done under the warrant stops as soon as possible.
A warrant that has been cancelled under this section may not be renewed.
In this section “senior official” means—
in the case of a warrant issued by the Secretary of State, a member of the Senior Civil Service or a member of the Senior Management Structure of Her Majesty’s Diplomatic Service;
in the case of a warrant issued by the Scottish Ministers, a member of the staff of the Scottish Administration who is a member of the Senior Civil Service.
See also section 40 (which imposes a duty to cancel mutual assistance warrants in certain circumstances).
For the purposes of this section a warrant is a “relevant mutual assistance warrant” if—
the warrant is for the purposes of a request for assistance made under an EU mutual assistance instrument or an international mutual assistance agreement by the competent authorities of a country or territory outside the United Kingdom, and
either—
it appears that the interception subject is outside the United Kingdom, or
the interception authorised or required by the warrant is to take place in relation only to premises outside the United Kingdom.
The decision to issue a relevant mutual assistance warrant may be taken by a senior official designated by the Secretary of State for that purpose.
In such a case, the warrant must contain—
a statement that the warrant is issued for the purposes of a request for assistance made under an EU mutual assistance instrument or an international mutual assistance agreement (as the case may be) by the competent authorities of a country or territory outside the United Kingdom, and
whichever of the following statements is applicable—
a statement that the interception subject appears to be outside the United Kingdom;
a statement that the interception authorised or required by the warrant is to take place in relation only to premises outside the United Kingdom.
A relevant mutual assistance warrant may be renewed by a senior official designated by the Secretary of State for that purpose; and references in section 33 to the appropriate person include, in the case of such a warrant, references to that senior official.
Where a senior official renews a relevant mutual assistance warrant in accordance with subsection (4), the instrument renewing the warrant must contain—
a statement that the renewal is for the purposes of a request for assistance made under an EU mutual assistance instrument or an international mutual assistance agreement (as the case may be) by the competent authorities of a country or territory outside the United Kingdom, and
whichever of the following statements is applicable—
a statement that the interception subject appears to be outside the United Kingdom;
a statement that the interception authorised or required by the warrant is to take place in relation only to premises outside the United Kingdom.
Subsection (7) applies in a case where—
a relevant mutual assistance warrant—
was issued containing the statement set out in subsection (3)(b)(i), or
has been renewed by an instrument containing the statement set out in subsection (5)(b)(i), and
the last renewal (if any) of the warrant was a renewal by a senior official in accordance with subsection (4).
If the Secretary of State, or a senior official acting on behalf of the Secretary of State, believes that the person, group or organisation named or described in the warrant as the interception subject is in the United Kingdom, that person must cancel the warrant under section 39.
In this section—
This section applies to targeted interception warrants and mutual assistance warrants.
In giving effect to a warrant to which this section applies, the person to whom it is addressed (“the intercepting authority”) may (in addition to acting alone) act through, or together with, such other persons as the intercepting authority may require (whether under subsection (3) or otherwise) to provide the authority with assistance in giving effect to the warrant.
For the purpose of requiring any person to provide assistance in relation to a warrant to which this section applies, the intercepting authority may—
serve a copy of the warrant on any person who the intercepting authority considers may be able to provide such assistance, or
make arrangements for the service of a copy of the warrant on any such person.
A copy of a warrant may be served under subsection (3) on a person outside the United Kingdom for the purpose of requiring the person to provide such assistance in the form of conduct outside the United Kingdom.
For the purposes of this Act, the provision of assistance in giving effect to a warrant to which this section applies includes any disclosure to the intercepting authority, or to persons acting on behalf of the intercepting authority, of anything obtained under the warrant.
References in this section and sections 42 and 43 to the service of a copy of a warrant include—
the service of a copy of one or more schedules contained in the warrant with the omission of the remainder of the warrant, and
the service of a copy of the warrant with the omission of any schedule contained in the warrant.
This section applies to the service of warrants under section 41(3).
A copy of the warrant must be served in such a way as to bring the contents of the warrant to the attention of the person who the intercepting authority considers may be able to provide assistance in relation to it.
A copy of a warrant may be served on a person outside the United Kingdom in any of the following ways (as well as by electronic or other means of service)—
by serving it at the person’s principal office within the United Kingdom or, if the person has no such office in the United Kingdom, at any place in the United Kingdom where the person carries on business or conducts activities;
if the person has specified an address in the United Kingdom as one at which the person, or someone on the person’s behalf, will accept service of documents of the same description as a copy of a warrant, by serving it at that address;
by making it available for inspection (whether to the person or to someone acting on the person’s behalf) at a place in the United Kingdom (but this is subject to subsection (4)).
A copy of a warrant may be served on a person outside the United Kingdom in the way mentioned in subsection (3)(c) only if—
it is not reasonably practicable for a copy to be served by any other means (whether as mentioned in subsection (3)(a) or (b) or otherwise), and
the intercepting authority takes such steps as the authority considers appropriate for the purpose of bringing the contents of the warrant, and the availability of a copy for inspection, to the attention of the person.
The steps mentioned in subsection (4)(b) must be taken as soon as reasonably practicable after the copy of the warrant is made available for inspection.
In this section “the intercepting authority” has the same meaning as in section 41.
A relevant operator that has been served with a copy of a warrant to which section 41 applies by (or on behalf of) the intercepting authority must take all steps for giving effect to the warrant that are notified to the relevant operator by (or on behalf of) the intercepting authority. This is subject to subsection (4).
In this section—
“the intercepting authority” has the same meaning as in section 41.
Subsection (1) applies whether or not the relevant operator is in the United Kingdom.
The relevant operator is not required to take any steps which it is not reasonably practicable for the relevant operator to take.
In determining for the purposes of subsection (4) whether it is reasonably practicable for a relevant operator outside the United Kingdom to take any steps in a country or territory outside the United Kingdom for giving effect to a warrant, the matters to be taken into account include the following—
any requirements or restrictions under the law of that country or territory that are relevant to the taking of those steps, and
the extent to which it is reasonably practicable to give effect to the warrant in a way that does not breach any of those requirements or restrictions.
Where obligations have been imposed on a relevant operator (“P”) under section 253 (technical capability notices), for the purposes of subsection (4) the steps which it is reasonably practicable for P to take include every step which it would have been reasonably practicable for P to take if P had complied with all of those obligations.
A person who knowingly fails to comply with subsection (1) is guilty of an offence and liable—
on summary conviction in England and Wales— or to both;
to imprisonment for a term not exceeding 12 months (or 6 months, if the offence was committed before the commencement of section 154(1) of the Criminal Justice Act 2003), or
to a fine,
on summary conviction in Scotland— or to both;
to imprisonment for a term not exceeding 12 months, or
to a fine not exceeding the statutory maximum,
on summary conviction in Northern Ireland— or to both;
to imprisonment for a term not exceeding 6 months, or
to a fine not exceeding the statutory maximum,
on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or to both.
The duty imposed by subsection (1) is enforceable (whether or not the person is in the United Kingdom) by civil proceedings by the Secretary of State for an injunction, or for specific performance of a statutory duty under section 45 of the Court of Session Act 1988, or for any other appropriate relief.
The interception of a communication is authorised by this section if the sender and the intended recipient of the communication have each consented to its interception.
The interception of a communication is authorised by this section if—
the communication is one sent by, or intended for, a person who has consented to the interception, and
surveillance by means of that interception has been authorised under—
Part 2 of the Regulation of Investigatory Powers Act 2000, or
the Regulation of Investigatory Powers (Scotland) Act 2000 (2000 asp 11).
The interception of a communication is authorised by this section if the interception is carried out—
by, or on behalf of, a person who provides a postal service or a telecommunications service, and
for any of the purposes in subsection (2).
The purposes referred to in subsection (1) are—
purposes relating to the provision or operation of the service;
purposes relating to the enforcement, in relation to the service, of any enactment relating to—
the use of postal or telecommunications services, or
the content of communications transmitted by means of such services;
purposes relating to the provision of services or facilities aimed at preventing or restricting the viewing or publication of the content of communications transmitted by means of postal or telecommunications services.
A reference in this section to anything carried out for purposes relating to the provision or operation of a telecommunications service includes, among other things, a reference to anything done for the purposes of identifying, combating or preventing anything which could affect—
any telecommunication system by means of which the service is provided, or
any apparatus attached to such a system.
Conduct is authorised by this section if it is authorised by regulations made under subsection (2).
The Secretary of State may by regulations authorise conduct of a description specified in the regulations if that conduct appears to the Secretary of State to constitute a legitimate practice reasonably required for the purpose, in connection with the carrying on of any relevant activities (see subsection (4)), of monitoring or keeping a record of—
communications by means of which transactions are entered into in the course of the relevant activities, or
other communications relating to the relevant activities or taking place in the course of the carrying on of those activities.
But nothing in any regulations under subsection (2) may 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 relevant activities for use (whether wholly or partly) in connection with those activities.
In this section “relevant activities” means—
any business,
any activities of a government department, the Welsh Government, a Northern Ireland department or any part of the Scottish Administration,
any activities of a public authority, and
any activities of any person or office holder on whom functions are conferred by or under any enactment.
The interception of a communication in the course of its transmission by means of a public postal service is authorised by this section if it is carried out by an officer of Revenue and Customs under section 159 of the Customs and Excise Management Act 1979, as applied by virtue of—
section 105 of the Postal Services Act 2000 (power to open postal items etc.), or
that section and another enactment.
The interception of a communication in the course of its transmission by means of a public postal service is authorised by this section if it is carried out under paragraph 9 of Schedule 7 to the Terrorism Act 2000 (port and border controls).
Conduct falling within subsection (2) is authorised by this section if it is carried out by OFCOM for purposes connected with a relevant matter (see subsection (3)).
The conduct referred to in subsection (1) is—
the interception of a communication in the course of its transmission by means of a telecommunication system;
the obtaining, by or in connection with the interception, of information about the sender or recipient, or intended recipient, of the communication (whether or not a person);
the disclosure of anything obtained by conduct falling within paragraph (a) or (b).
Each of the following is a relevant matter for the purposes of subsection (1)—
the grant of wireless telegraphy licences under the Wireless Telegraphy Act 2006 (“the 2006 Act”);
the prevention or detection of anything which constitutes interference with wireless telegraphy;
the enforcement of—
any provision of Part 2 (other than Chapter 2 and sections 27 to 31) or Part 3 of the 2006 Act, or
any enactment not falling within sub-paragraph (i) that relates to interference with wireless telegraphy.
In this section—
“interference”, in relation to wireless telegraphy, has the same meaning as in the Wireless Telegraphy Act 2006 (see section 115(3) of that Act);
Conduct taking place in a prison is authorised by this section if it is conduct in exercise of any power conferred by or under prison rules.
In this section “prison rules” means any rules made under—
section 47 of the Prison Act 1952,
section 39 of the Prisons (Scotland) Act 1989, or
section 13 of the Prison Act (Northern Ireland) 1953.
In this section “prison” means— and includes any contracted out prison, within the meaning of Part 4 of the Criminal Justice Act 1991 or section 106(4) of the Criminal Justice and Public Order Act 1994, and any legalised police cells within the meaning of section 14 of the Prisons (Scotland) Act 1989.
any prison, young offender institution, young offenders centre, secure training centre, secure college or remand centre which—
is under the general superintendence of, or is provided by, the Secretary of State under the Prison Act 1952, or
is under the general superintendence of, or is provided by, the Department of Justice in Northern Ireland under the Prison Act (Northern Ireland) 1953, or
any prison, young offenders institution or remand centre which is under the general superintendence of the Scottish Ministers under the Prisons (Scotland) Act 1989,
Conduct is authorised by this section if—
it takes place in any hospital premises where high security psychiatric services are provided, and
it is conduct in pursuance of, and in accordance with, any relevant direction given to the body providing those services at those premises.
“Relevant direction” means—
a direction under section 4(3A)(a) of the National Health Service Act 2006, or
a direction under section 19 or 23 of the National Health Service (Wales) Act 2006.
Conduct is authorised by this section if— The reference to section 2(5) of that Act is to that provision as applied by Article 5(1) of, and the Schedule to, the State Hospitals Board for Scotland Order 1995 (which applies certain provisions of that Act to the State Hospitals Board).
it takes place in a state hospital, and
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 National Health Service (Scotland) Act 1978 (regulations and directions as to the exercise of their functions by health boards).
Conduct is authorised by this section if it is conduct in exercise of any power conferred by or under—
section 281 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (2003 asp 13) (power to withhold correspondence of certain persons detained in hospital), or
section 284 of that Act (powers relating to the use of telephones by certain persons detained in hospital).
In this section—
Conduct taking place in immigration detention facilities is authorised by this section if it is conduct in exercise of any power conferred by or under relevant rules.
In this section—
The interception of a communication in the course of its transmission by means of a telecommunication system is authorised by this section if conditions A to D are met.
Condition A is that the interception—
is carried out by or on behalf of a telecommunications operator, and
relates to the use of a telecommunications service provided by the telecommunications operator.
Condition B is that the interception is carried out in response to a request made in accordance with a relevant international agreement by the competent authorities of a country or territory outside the United Kingdom. In this subsection “relevant international agreement” means an international agreement to which the United Kingdom is a party and which is designated as a relevant international agreement by regulations made by the Secretary of State.
Condition C is that the interception is carried out for the purpose of obtaining information about the communications of an individual—
who is outside the United Kingdom, or
who each of the following persons believes is outside the United Kingdom—
the person making the request;
the person carrying out the interception.
Condition D is that any further conditions specified in regulations made by the Secretary of State for the purposes of this section are met.