2.
No prior independent authorisation
188.
Under RIPA there is no requirement for, or process enabling, the prior
independent authorisation of s8(4) warrants. Instead, warrants are issued
by a Government minister without reference to any judicial or other
independent authority. This is incompatible with Article 8. The problem
with the current regime was explained by the Independent Reviewer in
his June 2015 report. He noted “the Secretary of State is rarely if ever held
politically accountable for the issue of warrants: contributing factors are
RIPA s.19 [prohibiting disclosure of the fact a warrant has been issued or
its content], NCND [the ‘Neither Confirm Nor Deny’ principle] and the fact
that intercepted material is not admissible in court [with the effect that a
judge will not review the lawfulness of the intercept operation].”111 The
Independent Reviewer noted that the UK Foreign Office argued that
judicial authorisation might “disadvantage the UK” because judges would
refuse applications that a government minister would sign.112 He
observed: “Were it the case that Ministers might be tempted to issue
warrants in circumstances where it is illegal to do so, that would seem to
me a strong argument in favour of judicial authorisation rather than
against it”113
189.
In Zakharov the Grand Chamber emphasised that the authorisation of a
warrant to intercept telephone calls must be made by an authority that is
independent from the Executive (§258).114
A Question of Trust, para 14.56.
A Question of Trust, para 14.57.
113 A Question of Trust, para 14.57.
114 The Court noted at §259 that: “Russian law contains an important safeguard against arbitrary
or indiscriminate secret surveillance. It dictates that any interception of telephone or other
communications must be authorised by a court…The law-enforcement agency seeking
authorisation for interception must submit a reasoned request to that effect to a judge, who may
require the agency to produce supporting materials…The judgment must give reasons for the
decision to authorise interceptions”.
111
112
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