CHAPTER 12: CIVIL SOCIETY
(b)
It would bring more independence and thus trust to the decision-making
procedure.
(c)
It would be entirely workable.
12.51. It is a model that has been successful in other countries,60 and that operates in relation
to other investigatory powers in the UK. For many, it is clearly the appropriate level
of scrutiny required to authorise the type of intrusion in question: as English law has
long recognised the need for a judicial warrant for the search of a person’s home, the
equivalent should be required to access the information available regarding a person
based on their communications (which may be very intrusive and informative).
12.52. Modifications of this broad suggestion included the suggestion of judicial scrutiny
alongside ministerial scrutiny,61 or judicial authorisation for certain activities or certain
data, or the use of a model of a Commissioner.62 In response to considerations of
urgency raised by public authorities, suggestions noted that there could be provisions
for ex parte out-of-hours requests that could be dealt with extremely quickly, as well
as the possibility of a short (24 or 48) hour period in which urgent authorisations were
permitted internally and then had to be reviewed and authorised by a judge at a later
stage.63
12.53. As set out further below, the need for such authorisation is particularly emphasised in
relation to the content and communications data regarding or revealing journalistic
sources64 or that which is covered by LPP.
12.54. However, there is a general view that judicial authorisation by magistrates of local
authority applications pursuant to ss23A and 23B has not been an effective means of
securing more robust scrutiny.65 Thus, in line with these criticisms, most of the
submissions on this point did not suggest granting further decision-making powers to
magistrates but rather to transfer such powers to the High Court or a similar level.
Indeed, judicial authorisation is not, as others have pointed out, a “panacea”.66 It does
not (necessarily) provide for oversight “downstream”, i.e. after-the-event scrutiny.
However, as has been emphasised to me, it may provide further independence,
greater scrutiny and increased public trust.
60
61
62
63
64
65
66
According to the submission I received from Liberty, who pointed to the United States of America,
Australia, Canada and New Zealand as examples: see further 8.40 above and Annex 15 to this Report.
See also the UN Office on Drugs on Crime, Current practices in electronic surveillance in the
investigation of serious and organised crime, (2009), p. 17.
See Dr Andrew Defty and Professor Hugh Bochel. This would be a system similar to that existing in
Canada, as set out further in Annex 15 to this Report.
As set out in the submission of the Bingham Centre for the Rule of Law.
See the submission of the Guardian Media Group.
As indeed was recognised in IOCCO’s 2015 inquiry into the use of Chapter 2 of Part 1 of RIPA to identify
journalistic sources, (February 2015).
See the 2013 Annual Report of the Chief Surveillance Commissioner, para 3.10; IOCCO’s submission
to this Review, 3.11.12-15.
See IOCCO’s submission to this Review, section 3, and IOCC Report, (March 2015), paras 6.54-6.59
and 7.36-7.39.
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