IPCO Annual Report 2018
2.33
Examples of how these powers might be used are given in the Code of Practice (CoP). By
example, this might include a criminal gang or suspected terrorist cell where the identity,
and perhaps number, of individuals is unknown but they are assessed to have a common
purpose which the relevant agency is investigating. The ability to apply to conduct intrusive
actions against a number of unidentified individuals has been of great interest to our
Judicial Commissioners (JCs), who have introduced a rigorous review process focusing their
approval considerations on whether the bounds of the application are well defined and
the scope of the operation is appropriately foreseeable. Because of the sensitivity of the
operations covered by this kind of warrant, we are unable to provide statistics or specific
examples of use. However, from our inspections and oversight to date, we have seen
that the use of the provisions under section 17(2) are, in the majority of cases, used to
authorise interception of communications to a small group of targets, as would be expected
from these examples.
2.34
The legislation does not specify an upper limit for the scale of these authorisations. There
are scenarios where it might be appropriate for an authority to seek the authorisation
to intercept communications to a larger number of individuals in relation to a specific
operational objective. This is only permissible where this is necessary and proportionate;
our JCs need to be satisfied that the operational objectives cannot be achieved by other,
less intrusive, means. We have been pleased to note that oversight via inspection and
the double lock has confirmed that all intercepting agencies apply these safeguards
appropriately and, in all cases reviewed, the requirement to use the relevant tactic is clear.
2.35
Management of any section 17(2) authorisations relies on a robust modification process.
The IPA introduces major and minor modifications for interception warrantry, building on
that which was in place under RIPA.
2.36
Major modifications are authorised by a Senior Official in the relevant Warrant Granting
Department11 whilst minor modifications can be authorised by a senior person within
the intercepting agency. A major modification can be used for the name of an individual,
premises or organisation to be added to a warrant or amended. Minor modifications
can be used to remove them, or to add a factor. These provisions mean that if a new
target is identified, and can be named or described, then a Senior Official at the warrant
granting department may authorise interception of communications factors related to
that individual. The Senior Official will consider the necessity and proportionality case for
intercepting communications relating to the new target in the context of the warranted
operation. If, however, a new communications factor is identified for an individual already
listed on the warrant’s permissions or under group descriptions, then a senior person
within that agency can authorise its interception.
2.37
Major modifications should then be notified to a JC.
2.38
Additionally, urgent provisions allow for major modifications to be made within the
intercepting agency and to be retrospectively approved by the warrant granting
department.
11 Warrants under the Investigatory Powers Act 2016, Regulation of Investigatory Powers Act 2000 and the Intelligence Services Act
may be issued by a Secretary of State. In practice, most warrants are granted by the Home Secretary, Foreign Secretary, Defence
Secretary, Secretary of State for Northern Ireland, the Cabinet Secretary for Justice in Scotland. The departments working under
these Secretaries of State are referred to as the Warrant Granting Departments.
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