LIBERTY AND OTHERS v. THE UNITED KINGDOM JUDGMENT
11
not the practice to consult him in advance and such consultation on a routine basis
would not be practicable. So the Commissioner’s view is largely retrospective, to
check that warrants have not been issued in contravention of the Act and that
appropriate procedures were followed. To that end, I have visited all the warrant
issuing departments and agencies named in this report, in most cases more than once,
and discussed at some length the background to the warrant applications. I have also
discussed the procedure for seeking warrants with officials at various levels in all the
initiating bodies and presenting departments. I have inspected a significant number of
warrants, some chosen by me at random, some put before me because it was felt that I
should see them. Although I have described ... a number of instances in which
mistakes were made or mishaps occurred, I have seen no case in which the statutory
restrictions were deliberately evaded or corners knowingly cut. A salutary practice has
grown up by which the Commissioner’s attention is specifically drawn to any case in
which an error or contravention of the Act has occurred: I accordingly believe that
there has been no such case during 1992 of which I am unaware.”
Similar conclusions about the authorities’ compliance with the law were
drawn by all the Commissioners in their reports during the 1990s.
33. In each of the annual reports made under the 1985 Act the
Commissioner stated that in his view the arrangements made under
section 6 of the 1985 were adequate and complied with, without revealing
what the arrangements were. In the 1989 Report the Commissioner noted at
§ 9 that there had been technological advances in the telecommunications
field which had “necessitated the making of further arrangements by the
Secretary of State for the safeguarding of material under section 6 of the
[1985 Act]”. The Commissioner stated that he had reviewed the adequacy of
the new arrangements. For the year 1990, the Commissioner recorded that,
as a result of a new practice of the police disclosing some material to the
Security Service, a further change in the section 6 arrangements had been
required. The Commissioner said in the 1990 Report that he was “satisfied
with the adequacy of the new arrangements” (1990 Report at § 18). In the
1991 Report, the Commissioner stated that there had been some minor
changes to the section 6 arrangements and confirmed that he was satisfied
with the arrangements as modified (§ 29 of the 1991 Report). In the 1993
Report, the Commissioner said at § 11:
“Some of the written statements of section 6 safeguards which I inspected required
to be updated to take account of changes in the public telecommunications market
since they had been drafted and approved. Other statements could, as it seemed to me,
be improved by more explicit rules governing the circumstances and manner in which,
and the extent to which, intercept material could be copied. It also seemed to me that
it would be advantageous, where this was not already done, to remind all involved m
handling intercept material on a regular basis of the safeguards to which they were
subject, securing written acknowledgements that the safeguards had been read and
understood. These suggestions appeared to be readily accepted by the bodies
concerned. They did not in my view indicate any failure to comply with section 6 of
the Act.”