BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
85
7. Annual Report of the Interception of Communications Commissioner
for 2016
(a) Section 8(4) warrants
178. The Commissioner observed that when conducting interception
under a section 8(4) warrant, an intercepting agency had to use its
knowledge of the way in which international communications were routed,
combined with regular surveys of relevant communications links, to identify
those individual communications bearers that were most likely to contain
external communications that would meet the descriptions of material
certified by the Secretary of State under section 8(4). It also had to conduct
the interception in ways that limited the collection of non-external
communications to the minimum level compatible with the objective of
intercepting the wanted external communications.
179. He further observed that prior to analysts being able to read, look at
or listen to material, they had to provide a justification, which included why
access to the material was required, consistent with, and pursuant to
section 16 and the applicable certificate, and why such access was
proportionate. Inspections and audits showed that although the selection
procedure was carefully and conscientiously undertaken, it relied on the
professional judgment of analysts, their training and management oversight.
180. According to the report, 3007 interception warrants were issued in
2016 and five applications were refused by a Secretary of State. In the view
of the Commissioner, these figures did not capture the critical quality
assurance function initially carried out by the staff and lawyers within the
intercepting agency or the warrant-granting department (the warrantgranting departments were a source of independent advice to the Secretary
of State and performed pre-authorisation scrutiny of warrant applications
and renewals to ensure that they were (and remained) necessary and
proportionate). Based on his inspections, he was confident that the low
number of rejections reflected the careful consideration given to the use of
these powers.
181. A typical inspection of an interception agency included the
following:
a review of the action points or recommendations from the
previous inspection and their implementation;
an evaluation of the systems in place for the interception of
communications to ensure they were sufficient for the purposes of
Chapter 1 of Part 1 of RIPA and that all relevant records had been
kept;
the examination of selected interception applications to assess
whether they were necessary in the first instance and then
whether the requests met the necessity and proportionality
requirements;