CHAPTER 14: EXPLANATIONS
appointed by the Prime Minister in mid-2014 as Special Envoy on intelligence and law
enforcement data sharing.
14.59. Recommendation 25 falls more directly within my remit. I understand those who argue
that extraterritorial application sets a bad example to other countries, and who
question whether it will ever or could ever be successfully enforced. It is certainly an
unsatisfactory substitute for a multilateral arrangement under which partner countries
would agree to honour each others’ properly warranted requests, which must surely
be the long-term goal. But some service providers find it easier to assist if there is a
legal power purporting to require them to do so; and despite the fact that extraterritorial
enforcement has not yet been tried, the presence on the statute book of DRIPA 2014
s4 has been of some assistance in securing vital cooperation from service providers.
On that pragmatic basis I suggest that it should remain in force, at least for the time
being.
Specific interception warrants
14.60. Recommendations 26-38 concern what I describe as “specific interception warrants”,
which like all other warrants must be issued by a Judicial Commissioner.
14.61. Currently, “the very significant majority of 8(1) warrants relate to one individual”.57
Limitation to a single person or premises would indeed appear to be required by the
literal wording of RIPA s8(1). But the practice has developed of issuing “thematic
warrants”, which allow the same capability to be used against a defined group or
network whose characteristics are such that the extent of the interference can
reasonably be foreseen, and assessed as necessary and proportionate, in advance.58
14.62. The use of thematic warrants (which recall the practice in parts of Europe of issuing
warrants in respect of a particular investigation without listing every individual target)
has been a positive development – though caution has been needed, not least
because there is no very clear backing for them on the face of RIPA s8(1). A single
warrant application in respect of (for example) an organised crime group gives the
intercepting authority the power to add or remove persons or premises from the
warrant without recourse to the Secretary of State, which can be particularly useful in
urgent or fast-moving cases. Thematic warrants can give both the issuing authority
and the auditor a quicker and better grasp of the investigation than does a series of
applications relating to different individuals. They can also help reduce the
proliferation of documents of which the police complained to me (9.33 above).
14.63. My intention has been to encourage the use of thematic warrants (Recommendation
27), but within strict limits. The key issue here is the power of modification: I have
recommended the addition of a new person or premises to the warrant should
normally be for a Judicial Commissioner (rather than, as currently, for a senior official
of a WGD), but that the function may be delegated by a Judicial Commissioner to a
sufficiently senior DP if the circumstances so demand (Recommendation 34).
57
58
ISC Privacy and Security Report, March 2015, para 42.
Ibid., paras 42-45; see also 7.15-7.16 and 10.38 above.
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