Report of the Interception of Communications Commissioner - March 2015
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15(3) – “as soon as there are no longer grounds for retaining it as necessary for
any of the authorised purposes” – is not always clear cut and may be amenable
to differing judgments. I provide an update on this work in paragraphs 6.60
to 6.65 of this report.
the Errors Section of my 2013 report (and the comparative section in this
report) has instances where interception has been unintentionally undertaken
in error. Every error is regrettable and some of them constitute unintentional
unlawfulness. But I consider that the interception errors may properly be seen
as largely isolated and fringe problems.
I needed to undertake further detailed investigation into the actual application
of individual selection criteria from stored selected material initially derived
from section 8(4) interception.
6.36 I will come back to (3) but first it is pertinent to note that since my 2013 report
and subsequent investigations there have been several cases taken to the IPT which
are relevant to my area of oversight. The case of Liberty & Others vs. the Security
Service, SIS and GCHQ23, is particularly relevant to the operation of the section 8(4)
process. In the Judgment dated 5th December 2014 the IPT made a declaration that
the regime in respect of interception under sections 8(4), 15 and 16 of RIPA 2000 does
not contravene Articles 8 or 10 of the European Convention on Human Rights (ECHR)
and does not give rise to unlawful discrimination contrary to Article 14, read together
with Articles 8 and/or 10 of the ECHR. A further Judgment dated 6th February 2015
declared that prior to the disclosures made by the respondent, the regime governing
intelligence-sharing contravened Articles 8 or 10 ECHR24. There are still outstanding
matters regarding the proportionality and lawfulness of any alleged interception of the
Claimants’ communications to be determined. Furthermore at the time of drafting this
report, a revised draft of the interception of communications code of practice is out for
public consultation25 and section 7 includes additional information on the safeguards
that exist for the interception and handling of external communications under section
8(4) of RIPA 2000, including how the section 16 procedures are applied.
6.37 In 2014 my office carried out the further investigations into the actual application
of individual selection criteria as mentioned at (3) above and, in particular reviewed the
breadth and depth of the internal procedures for the selection of material to ensure that
they were sufficiently strong in all respects. These investigations, which focused on GCHQ
as the interception agency that makes the most use of section 8(4) warrants and selection
criteria, addressed in good detail the selection criteria and related matters.
6.38 In brief, prior to analysts being able to read, look at or listen to material, they
must first provide a justification which includes why access to the material is required,
consistent with, and pursuant to, section 16 and the applicable certificate (i.e. how the
requirement is linked to one of the statutory necessity purposes and is a valid intelligence
23 See IPT/13/77/H http://www.ipt-uk.com/docs/IPT_13_168-173_H.pdf
24 http://www.ipt-uk.com/docs/Liberty_Ors_Judgment_6Feb15.pdf
25 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/401866/Draft_
Interception_of_Communications_Code_of_Practice.pdf
www.iocco-uk.info
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