2013 Annual Report of the Interception of Communications Commissioner
someone in the British Islands to be selected for examination. This is, however, qualified
to a limited extent by sections 16(3) and 16(5).
6.5.36 Section 16(3) permits the examination of material acquired under a section 8(4)
warrant relating to the communications of a person within the British Islands if the
Secretary of State has certified for “the individual in question” that its examination is
necessary for a statutory purposes in relation to a specific period of not more than 6
months for national security purpose or 3 months for serious crime or economic wellbeing. Since this certificate has to relate to an individual, it is generally equivalent to a
section 8(1) warrant.
6.5.37 Section 16(4) and (5) have the effect that material acquired under a section 8(4)
warrant for a person who is within the British Islands may be examined for a very short
period upon the written authorisation of a senior official where the person was believed
to be abroad but it has just been discovered that he or she has in fact entered the British
Islands. This will enable a section 8(1) warrant or section 16(3) certificate for that person
to be duly applied for without losing what could be essential intelligence.
6.5.38 What this all boils down to is that
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a section 8(4) warrant permits the interception of generally described (but not
indiscriminate) external communications.
this may only be lawfully examined if it is within a description certified by the
Secretary of State as necessary for a statutory purpose.
the selection for examination may not be referable to the communications
of an individual who is known to be for the time being in the British Islands
unless he or she is the subject of an individual authorisation under section
16(3) or (5)13.
the section 8(4) structure does not permit random trawling of communications.
This would be unlawful. It only permits a search for communications referable
to individuals the examination of whose communications are certified as
necessary for a statutory purpose.
13 This analysis of what is now section 16 of RIPA 2000 was in substance explained in Parliament during a
House of Lords debate on the bill which became RIPA 2000. At that stage, what is now section 16 was
clause 15 in the bill. Lord Bassam of Brighton, responding to an opposition amendment (subsequently
withdrawn) essentially probing whether clause 8(4) would permit “Orwellian trawling”, said at Hansard
House of Lords Debates for 12 July 2000 at column 323:
“It is still the intention that Clause 8(4) warrants should be aimed at external communications. Clause 8(5)
limits such a warrant to authorising the interception of external communications together with whatever
other conduct is necessary to achieve that external interception. Whenever such a warrant is signed, the
Secretary of State must be convinced that the conduct it will authorise as a whole is proportionate--my
favourite word--to the objects to be achieved. His decision to sign will be overseen by the interception of
communications commissioner.
“The next layer of protection is the certificate. Anything that is not within the terms of the certificate may
be intercepted but cannot be read, looked at or listened to by any person. Beyond that are the safeguards
set out in subsection (2) of Clause 15. Except in the special circumstances set out in later subsections, or
if there is an “overlapping” Clause 8(1) warrant, selection may not use factors which are referable to an
individual known to be for the time being in the British Islands.”
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