BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
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sensitive professions. A significant proportion of these 948 applications
were categorised incorrectly (that is, the applicant had recorded a sensitive
profession when there was not one). This was usually because the applicant
erred on the side of caution, recording a sensitive profession if there was a
possibility of one, rather than because they knew that there was one, a fact
which provided the Commissioner with “a greater level of assurance that
[designated persons] are taking sensitive professions into account when
necessary”. Furthermore, according to the Commissioner, most applications
relating to members of sensitive professions were submitted because the
individual had been a victim of crime or was the suspect in a criminal
investigation. In these cases, the profession of the individual was usually not
relevant to the investigation, but public authorities showed proper
consideration of the sensitive profession by bringing it to the attention of the
authorising officer.
194. Having considered the “reportable errors”, the Commissioner noted
that the number of serious errors remained very low (0.004%).
G. The Investigatory Powers Act 2016
195. The Investigatory Powers Act 2016 received Royal Assent on
29 November 2016.
196. On 30 December 2016 Part 4 of the 2016 Act, which included a
power to issue “retention notices” to telecommunications operators
requiring the retention of data, came into force (although not in its entirety).
Following a legal challenge by Liberty, the Government conceded that
Part 4 of the IPA was, in its current form, inconsistent with the requirements
of EU law. Part 4 was not amended and on 27 April 2018 the High Court
found Part 4 to be incompatible with fundamental rights in EU law since, in
the area of criminal justice, access to retained data was not limited to the
purpose of combating “serious crime”; and access to retained data was not
subject to prior review by a court or an independent administrative body.
The court concluded that the legislation had to be amended by 1 November
2018.
197. On 13 February 2017 the provisions of the IPA relating to the
appointment of the Investigatory Powers Commissioner and other Judicial
Commissioners came into force. On 3 March 2017, the Government
appointed the first Investigatory Powers Commissioner (a judge currently
sitting on the Court of Appeal and former justice of the International
Criminal Court) for a three-year term and he took up appointment with
immediate effect. The newly created Investigatory Powers Commissioners
Office (“ICPO”) commenced operations on 8 September 2017 and is
ultimately due to consist of around 70 staff (including approximately fifteen
judicial commissioners made up of current and recently retired judges of the