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LIBERTY AND OTHERS v. THE UNITED KINGDOM JUDGMENT
In his first year as Commissioner, Lord Nolan reported the following on
this issue of section 6 safeguards (1994 Report, § 6):
“Like my predecessors, I have on each of my visits considered and discussed the
arrangements made by the Secretary of State under section 6 for the purpose of
limiting the dissemination and retention of intercepted material to what is necessary
within the meaning of section 2. Each agency has its own set of such arrangements,
and there are understandable variations between them. For example, the practical
considerations involved in deciding what is necessary in the interests of national
security, or the economic well-being of the United Kingdom (the areas with which the
Security Service and the Secret Intelligence Service are almost exclusively concerned)
are somewhat different from those involved in the prevention and detection of serious
criminal offences (with which the police forces and HM Customs & Excise are almost
exclusively concerned). I am satisfied that all of the agendas are operating within the
existing approved safeguards under the terms of the arrangements as they stand ...”
2. The Regulation of Investigatory Powers Act 2000
34. The 2000 Act came into force on 15 December 2000. The
explanatory memorandum described the main purpose of the Act as being to
ensure that the relevant investigatory powers were used in accordance with
human rights. As to the first, interceptions of communications, the 2000 Act
repealed, inter alia, sections 1-10 of the 1985 Act and provides for a new
regime for the interception of communications.
35. The 2000 Act is designed to cover the purposes for which the
relevant investigatory powers may be used, which authorities can use the
powers, who should authorise each use of the power, the use that can be
made of the material gained, judicial oversight and a means of redress for
the individual.
36. A new Investigatory Powers Tribunal (“IPT”) assumed the
responsibilities of the former ICT, of the Security Services Tribunal and of
the Intelligence Services Tribunal. The Interception of Communications
Commissioner continues to review the actions of the Secretary of State as
regards warrants and certificates and to review the adequacy of the
arrangements made for the execution of those warrants. He is also, as
before, to assist the Tribunal. In addition, the Secretary of State is to consult
about and to publish codes of practice relating to the exercise and
performance of duties in relation to, inter alia, interceptions of
communications.
37. Section 2(2) of the 2000 Act defines interception as follows:
“For the purposes of this Act, but subject to the following provisions of this section,
a person intercepts a communication in the course of its transmission by means of a
telecommunications system if, and only if, he –
(a) so modifies or interferes with the system, or its operation,
(b) so monitors transmissions made by means of the system, or