14
Investigatory Powers Commissioner’s Annual Report 2019
Judicial engagement on authorisation matters
2.30
During 2019 we have continued to benefit from a wide range of discussions on
emerging issues with those we oversee. We held four quarterly meetings of the
Judicial Commissioners (JCs), during which they were briefed by representatives from
the UK intelligence community (UKIC), law enforcement, HMG and members of the
Technology Advisory Panel (TAP) on the present intelligence and law enforcement threats,
technological or operational developments, and litigation and other legal developments
relevant to our work.
2.31
The JCs regularly seek additional information about applications for warrants before making
a decision on them. On occasion, a request for additional information or clarification may
result in the withdrawal of an application by the warrant requesting body. The IPC considers
the withdrawal of an application, in response to a request for information or clarification,
as an example of the value of judicial oversight and challenge.
2.32
The IPC and the JCs have also continued to encourage briefings from law enforcement
bodies and UKIC well in advance of receiving novel or contentious applications. This kind
of engagement means that JCs or IPCO subject-matter experts can provide a non-binding
view on matters relevant to a warrant application, so that these can be addressed in the
application as then formally submitted.
Definition: the double lock
The “double lock” is the process by which a Judicial Commissioner (JC) must review and
authorise an application to use certain intrusive investigatory powers. It is a mechanism to seek
prior approval. This means that, following Secretary of State authorisation, a warrant under the
Investigatory Powers Act 2016 cannot be issued until it has been approved by a JC.
Thematic warrant applications
2.33
During the course of 2019, the JCs refused a number of thematic warrant applications
from a range of law enforcement agencies for targeted equipment interference and sought
further information and clarification from the forces regarding others. The refusal of these
warrants in general did not result from inappropriate use of powers or suggest that the
proposed actions were not necessary. However, the JCs were keen to ensure that the legal
documentation of the requests (the application) were correct and consistent between
forces. The Commissioners identified the following concerns with some applications for
thematic warrants:
• they included a general description of subjects in circumstances where it was not
clear why it was not reasonably practicable to include the names/descriptions of such
persons; and/or
• they provided an insufficient explanation as to the necessity and proportionality for
including as subjects those persons who were described by reference to a general
description.
2.34
Throughout the year, we found that similar issues were arising across the country, so our
Inspectors and legal team engaged with:
• lead individuals in the law enforcement agencies concerned, with a view to ensuring that
the JC’s concerns/points were disseminated appropriately; and