2013 Annual Report of the Interception of Communications Commissioner
3.6
Each of the Secretaries of State have senior officials and staff. Their functions
include scrutinising warrant applications for their form, content and sufficiency, and
presenting them to the relevant Secretary of State with appropriate suggestions.
3.7
Statutory necessity purposes. The Secretary of State is forbidden from issuing
an interception warrant unless he or she believes that it is necessary:
•
•
•
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in the interests of national security;
for the purpose of preventing or detecting serious crime;
for the purpose of safeguarding the economic wellbeing of the United
Kingdom (which has to be directly related to state security).4
for the purpose, in circumstances appearing to the Secretary of State to be
equivalent to those in which he would issue a serious crime warrant to give
effect to the provisions of any international mutual assistance agreement
(section 5(3)).
3.8
These statutory purposes and the requirement of necessity come directly from
Article 8 of the Human Rights Convention. To issue an interception warrant for any
other purpose would be unlawful. Needless to say, Secretaries of State do not issue
interception warrants for other purposes. It is part of my function to make sure that they
do not.
3.9
Proportionality. The Secretary of State is forbidden from issuing an interception
warrant unless he or she believes that the conduct authorised by the warrant is
proportionate to what is sought to be achieved by that conduct.
3.10 Proportionality pervades human rights jurisprudence and is explicitly central to
the lawful operation of RIPA 2000. Every application for a Part I Chapter I interception
warrant has to address proportionality explicitly. Secretaries of State have to address
proportionality in the judgment they apply to decide whether or not to issue an
interception warrant. A judgment whether it is proportionate to issue the interception
warrant requires holding a balance between (a) the necessity to engage in potentially
intrusive conduct and (b) the anticipated amount and degree of intrusion. The judgment
has to consider whether the information which is sought could reasonably be obtained
by other less intrusive means. This is explicit for interception (section 5(4)). Warrants are
refused (or never applied for) where it is judged that the necessity does not outweigh
the intrusion.
3.11 Types of Interception Warrants. There are essentially two types of interception
warrants. Section 8(1) warrants and section 8(4) warrants.
3.12
All interception warrants are for the interception of the content of communications
4 See Directive 97/66/EC.
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