Necessity, proportionality and collateral intrusion
In some of the renewal applications, noted that the original assessment on collateral
intrusion had not been reassessed following the addition of new communications
addresses. My inspectors made a number of recommendations in this respect.
Legal professional privilege material and other confidential material
There are special arrangements and safeguards in the Code of Practice relating to
communications involving legal professional privilege or confidential journalistic or
personal material, which may give rise to issues under Article 6 (right to a fair trial) and
Article 10 (freedom of expression) of the European Convention on Human Rights (ECHR),
as well as Article 8 (right to privacy).
The recommendations reminded the intercepting authorities that renewals need to include
reference to instances where such material had been intercepted and to explain how the
material had been handled. In the vast majority of cases, the material was immediately
destroyed because it was of no intelligence interest. However, where such material had
been retained, it was brought to my inspectors’ attention. They also recommended that
managers should carry out regular reviews of intercepted material in order to ensure
compliance with the safeguards.
Application templates. I favour a national application template to enable greater
consistency in standards across the nine interception agencies. Further work has been
done on this by agencies and warrant-granting departments in preparation for the
implementation of the provisions in the Investigatory Powers Act. This will be a great
help to judicial commissioners when they consider applications under the new Act.
Thematic warrants. I have had concerns about the scope of some thematic warrants,
and how authorities were interpreting the definition of person as defined in 81(1) of
RIPA, which states that a “person” includes any organisation and any association or
combination of persons. As a result, some warrants were cancelled and in some cases
new warrants were taken out against individuals rather than groups of people.
Changes to the GCHQ interception inspection regime
The last IOCCO annual report described a new 5-phase inspection regime for GCHQ, and
stated that I would report back on how this had worked in practice.
Phase 1: Inspectors examined the warrantry applications by making selections at reading
days and having further discussions on the inspection day with case officers from the
relevant area.
Phase 2: Inspectors carried out an audit of a geographical area and were able to examine
the necessity and proportionality statements made by analysts when adding a selector to
the collection system for examination. Each statement had to stand on its own and had
to refer to the overall requirement of priorities for intelligence collection. I was impressed
by the quality of the statements.
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