Investigatory Powers Commissioner’s Annual Report 2019
focused on a general awareness of the changes rather than working through specific
challenges of TEI provisions. National coordinators also delivered awareness briefings to
chief officers. These focused on what was classified as equipment interference and how
a typical deployment would unfold, rather than on a chief officer’s additional obligations
under the IPA and the TEI CoP.
12.34
As the IPA introduces new processes and practices, there are inevitably areas where there
are divergent views on what is necessary to ensure compliance. During our inspections,
we have seen the use of standard wording contained within a pre-prepared warrant
instrument to comply with the requirements of paragraph 5.4730 of the TEI CoP, which are
then endorsed by the AO upon issue. Whilst this may meet the legal requirement, we have
seen a small proportion of Senior AOs providing additional written considerations of the
statutory requirements on the warrant and, in each case reviewed, we have found these
to be valuable and well documented. We would encourage this practice, which accords
with the approach taken by Senior AOs for authorisations for such tactics as property
interference, intrusive surveillance and the use of undercover officers.
12.35
TEI applications have the potential to be complex, describing technically complicated and
potentially novel actions. This poses a challenge to the authorities applying for warrants
because they are required accurately and succinctly to describe the planned operation, as
well as the proportionality and collateral intrusion considerations of technically complex
operations in a format which is still often unfamiliar. However, most applications we
have seen during 2019, both through judicial scrutiny and at inspection, have been for
established tactics frequently used under the previous legislation. Applicants therefore
have a clear understanding of the scope and impact of their work. With technological
advances being made every day, we expect that this challenge will continue to be posed
to the authorities we oversee, but we expect to see a consistently high standard of
documentation as the process itself becomes more familiar.
12.36
Between January and May 2019, we conducted a series of inspections across law
enforcement to address potential issues in relation to their use of TEI. Our objective was to
reassure the JCs about how the majority of approved TEI warrants were being used; and to
inform and develop the future inspection regime for TEI. It was evident to our Inspectors
that, across the board, the knowledge and awareness of the safeguard requirements for
the handling and retention of TEI material, as set out in the 2018 CoP, was not as it should
be. Authorities informed us that they found the safeguarding guidelines unclear. This has
been mirrored through our experience via judicial consideration, which has overseen
more than 800 authorisations over 12 months. Compliance with the safeguard provisions
has been identified as a vulnerability across most LEAs and will therefore be a key focus
of our inspections, and specifically our data assurance programme (detailed at chapter 7)
throughout 2020.
30 This sets out the tests that must be met before the person responsible may issue a warrant.
85