Report of the Interception of Communications Commissioner - July 2016
are all important components of the review and re-assessment of the necessity and
proportionality of the conduct authorised and compliance with the legislation.
6.53 When an application for an interception warrant is submitted the proportionality
and collateral intrusion considerations in particular are based at a certain point in time
and, importantly, prior to any Article 8 interference being undertaken. In our view, in
practice, an additional and appropriate test as to whether something is, was or continues
to be proportionate to the Article 8 interference undertaken can only be obtained by
scrutinising the operational conduct carried out or, put another way, the downstream use
of the material acquired, for example by examining:
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how the material has been used / analysed;
whether the material was used for the stated or intended purpose;
what actual interference or intrusion resulted and whether it was proportionate
to the aim set out in the original authorisation;
whether the conduct became disproportionate to what was foreseen at the
point of authorisation and, importantly, if it did so why the operational team
did not initiate the withdrawal of the authority;
the retention, storage and destruction arrangements for material acquired;
and,
whether any errors / breaches resulted from the interference or intrusion.
6.54 For example, we might conduct a query based examination to check that the
intercepted material has been examined in a timely fashion, or to scrutinise the intelligence
value or benefit of the interception to enable an assessment to be made as to whether
the conduct remains necessary and proportionate. Another example might be to run
query based examinations on keywords (e.g. “solicitor”, “legal”) to identify cases where
communications subject to legal privilege may have been intercepted and retained. We
are then able to check whether that material has been handled in accordance with the
section 15 safeguards and the special procedures outlined in Chapter 3 of the Code of
Practice. It is this post-authorisation or downstream audit of what is (or just as importantly
what is not) being done with the material that brings more scrutiny and oversight to the
process.
6.55 In a large number of instances we conduct this audit between renewals. This
enables us to reassess the necessity and proportionality of the conduct authorised and
to review whether the conduct was foreseen by the person authorising the application.
As a result of our observations we have in a number of cases recommended the warrant’s
modification, required changes to operational practice to safeguard privacy, required
additional information to be provided to the secretary of state immediately or at the
point of next renewal, or recommended cancellation.
6.56 This audit function is easily achievable with the majority of the law enforcement
agencies as they hold the warrant documentation and the intelligence reports relating
to the intercepted material on sterile systems (due to the requirement to separate
interception-related documentation and intelligence from other business areas which
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