Report of the Interception of Communications Commissioner - July 2016
Inspection Findings & Recommendations
6.64 The total number of recommendations made in our inspection reports for the
nine interception agencies was 55, an average of six per interception agency. The number
of recommendations made in our inspection reports to the warrant issuing departments
was 19, an average of five per warrant issuing department.
6.65 Through our audits we have, in a number of specific cases, recommended that
interception warrants should be modified or cancelled, we have required changes to
operational practices or procedures to safeguard privacy, or have required additional
information to be provided (in submissions) to the secretary of state or senior official.
More broadly the recommendations made in relation to the application process have
improved compliance and the clarity and quality of the necessity and proportionality
justifications. Those made in relation to the section 15 / 16 safeguards have strengthened
or tightened a number of the procedures for the retention, storage, dissemination and
destruction of the intercepted material or related communications data.
6.66 Figure 4 shows that 77% of the recommendations emanating from the inspections
fell into three key categories: Application Process, Authorisation / Implementation of
Warrants or Procedures.
Application Process
6.67 Some 50% of the 74 recommendations were made in relation to the application
process. The majority of the recommendations in this category related to the necessity,
proportionality or collateral intrusion justifications in the applications, the handling of
material subject to legal professional privilege or otherwise confidential material, or
considerations regarding sensitive professions.
6.68 Necessity, proportionality and collateral intrusion. A key part of the necessity
test is to make the link between the individual under investigation, the identifier to be
intercepted, and the serious crime or threat to national security. In a number of cases the
link was not made between the first two points explicitly. In a small number of instances
the warrant applications did not set out sufficiently what the specific interest or threat
to national security was or explicitly state what were the potential criminal offences
(i.e. relevant legislation) that the agency was trying to prevent or detect. The latter was
prevalent where interception was being conducted primarily for strategic preventative
purposes or where the warrants related to investigations undertaken by police force
Professional Standards Departments (PSDs).
6.69 Last year we made a number of recommendations to the interception agencies to
ensure that renewal submissions contain a considered assessment of the actual intrusion
(whether collateral or otherwise) and how effective the steps to minimise that intrusion
have been. Generally we were satisfied this year that there had been improvements in
this respect, although we made one recommendation in this area for a warrant issuing
department to exercise a more robust guardian and gatekeeper role in this respect. We
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