BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
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writing or electronically. If the designated person believes the acquisition of
communications data is necessary and proportionate in the specific circumstances, an
authorisation is granted or a notice is given.
3.8. Individuals who undertake the role of a designated person must have current
working knowledge of human rights principles and legislation, specifically those of
necessity and proportionality, and how they apply to the acquisition of
communications data under Chapter II and this code.
3.9. When considering proportionality, the designated person should apply
particular consideration to unintended consequences. The seniority, experience and
training of the designated person provides them with a particular opportunity to
consider possible unintended consequences.
3.10. Designated persons must ensure that they grant authorisations or give notices
only for purposes and only in respect of types of communications data that a
designated person of their office, rank or position in the relevant public authority may
grant or give.
3.11. The designated person shall assess the necessity for any conduct to acquire or
obtain communications data taking account of any advice provided by the single point
of contact (SPoC).
3.12. Designated persons must be independent from operations and investigations
when granting authorisations or giving notices related to those operations.
3.13. Except where it is necessary to act urgently, in circumstances where a public
authority is not able to call upon the services of a designated person who is
independent from the investigation or operation, the Senior Responsible Officer must
inform the Interception of Communications Commissioner of the circumstances and
reasons (noting the relevant designated persons who, in these circumstances, will not
be independent). These may include:
small specialist criminal investigation departments within public authorities
which are not law enforcement or intelligence agencies; and
public authorities which have on-going operations or investigations
immediately impacting on national security issues and are therefore not
able to a call upon a designated person who is independent from their
operations and investigations.
3.14. In all circumstances where public authorities use designated persons who
not independent from an operation or investigation this must be notified to
Commissioner at the next inspection. The details of the public authorities and
reasons such measures are being undertaken may be published and included in
Commissioner’s report.
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3.15. Where a designated person is not independent from the investigation or
operation their involvement and their justification for undertaking the role of the
designated person must be explicit in their recorded considerations.
3.16. Particular care must be taken by designated persons when considering any
application to obtain communications data to identify apparatus (such as a mobile
telephone) at or within a location or locations and at or between times on a given date
or dates where the identity of the apparatus is unknown. Unless the application is
based on information that the apparatus was used or was likely to have been used in a
particular location or locations at a particular time or times it will, in practice, be rare