Issue 4: “Thematic warrants” and the requirement for specification under s.5
31.
We have set down the words “thematic warrants” in the above heading,
because the words are used in the Agreed Issues. However, not only do such
words have no statutory basis, but such description does not appear to us to
capture the reality of the issue which we have to decide. The words first
appear in a completely different context, namely at page 21 of the ISC Report
of 12 March 2015, a passage in which interception warrants under s.8(1) of
RIPA were being discussed.
32.
S.8(1) provides that:
“(1) An interception warrant must name or describe
either (a) one person as the interception subject; or
(b) a single set of premises as the premises in relation
to which the interception to which the warrant relates is
to take place.”
The ISC state in their Report in a section under the heading “Thematic
warrants” as follows:
“42. While the very significant majority of 8(1)
warrants relate to one individual, in some limited
circumstances an 8(1) warrant may be thematic. The
term ‘thematic warrant’ is not one defined in statute.
However, the Home Secretary clarified that Section 81
of RIPA defines a person as “[including] any
organisation [and] any association or combination of
persons”, thereby providing a statutory basis for
thematic warrants. The Home Secretary explained that
“the group of individuals must be sufficiently defined to
ensure that I, or another Secretary of State, is
reasonably able to foresee the extent of the interference
and decide that it is necessary and proportionate”
43. MI5 have explained that they will apply for a
thematic warrant “where we need to use the same
capability on multiple occasions against a defined
group or network on the basis of a consistent necessity
and proportionality case . . . rather than [applying for]
individual warrants against each member of the group.”
There is then discussion by reference to the issue of a s.8(1) warrant in the
context of a number of circumstances where it may be appropriate to grant
such a warrant by reference to a group linked by a specific intelligence
requirement. The thematic reference is obviously because of the wide
coverage of an (otherwise specific) s.8(1) warrant by virtue of the broad
definition of ‘person’ in s.8(1).