Regulation of Investigatory Powers Act 2000

Part I U.K. Communications

[F1 Chapter I U.K. Interception

Textual Amendments

F1 Pt. I Ch. 1 omitted (12.3.2018 for the omission of ss. 12, 13, 14(2)(c), 27.6.2018 for the omission of ss. 1 (for specified purposes), 3, 4, 17, 18, 19, 8.8.2018 for the omission of ss. 6, 9 for specified purposes, 26.9.2018 for the omission of s. 1 so far as not already in force, 7.11.2018 for the omission of ss. 6 (so far as not already in force), 7, 9 (for specified purposes)) by virtue of Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 45 (with Sch. 9 paras. 7, 8, 10); S.I. 2018/341, reg. 2(n) (with reg. 3); S.I. 2018/652, regs. 13, 14(c) (with regs. 15(4), 16, 19(1)(6)); S.I. 2018/940, regs. 3(h), 4(a)

Unlawful and authorised interception U.K.

1 Unlawful interception. U.K.

(1) It shall be an offence for a person intentionally and without lawful authority to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of—

(a) a public postal service; or

(b) a public telecommunication system.

[F2 (1A) The Interception of Communications Commissioner may serve a monetary penalty notice on a person if the Commissioner—

(a) considers that the person—

(i) i)has without lawful authority intercepted, at any place in the United Kingdom, any communication in the course of its transmission by means of a public telecommunication system, and

(ii) was not, at the time of the interception, making an attempt to act in accordance with an interception warrant which might, in the opinion of the Commissioner, explain the interception concerned, and

(b) does not consider that the person has committed an offence under subsection (1).

(1B) Schedule A1 (which makes further provision about monetary penalty notices) has effect.]

(2) It shall be an offence for a person—

(a) intentionally and without lawful authority, and

(b) otherwise than in circumstances in which his conduct is excluded by subsection (6) from criminal liability under this subsection,

to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of a private telecommunication system.

(3) Any interception of a communication which is carried out at any place in the United Kingdom by, or with the express or implied consent of, a person having the right to control the operation or the use of a private telecommunication system shall be actionable at the suit or instance of the sender or recipient, or intended recipient, of the communication if it is without lawful authority and is either—

(a) an interception of that communication in the course of its transmission by means of that private system; or

(b) an interception of that communication in the course of its transmission, by means of a public telecommunication system, to or from apparatus comprised in that private telecommunication system.

(4) Where the United Kingdom is a party to an international agreement which—

(a) relates to the provision of mutual assistance in connection with, or in the form of, the interception of communications,

(b) requires the issue of a warrant, order or equivalent instrument in cases in which assistance is given, and

(c) is designated for the purposes of this subsection by an order made by the Secretary of State,

it shall be the duty of the Secretary of State to secure that no request for assistance [F3 in connection with, or in the form of, the interception of communications] in accordance with the agreement is made on behalf of a person in the United Kingdom to the competent authorities of a country or territory outside the United Kingdom except with lawful authority.

[F4 (4A) The Secretary of State must also secure that a request for assistance to which subsection (4B) applies is made only with lawful authority.

(4B) This subsection applies to a request for assistance on behalf of a person in the United Kingdom to the competent authorities of a country or territory outside the United Kingdom where—

(a) the assistance is in connection with, or in form of, the interception of communications, and

(b) the request is made in accordance with Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters.]

(5) Conduct has lawful authority for the purposes of this section if, and only if—

(a) it is authorised by or under section 3 or 4;

(b) it takes place in accordance with a warrant under section 5 (“an interception warrant”); or

(c) it is in exercise, in relation to any stored communication, of any statutory power that is exercised (apart from this section) for the purpose of obtaining information or of taking possession of any document or other property;

and conduct (whether or not prohibited by this section) which has lawful authority for the purposes of this section by virtue of paragraph (a) or (b) shall also be taken to be lawful for all other purposes.

(6) The circumstances in which a person makes an interception of a communication in the course of its transmission by means of a private telecommunication system are such that his conduct is excluded from criminal liability under subsection (2) if—

(a) he is a person with a right to control the operation or the use of the system; or

(b) he has the express or implied consent of such a person to make the interception.

(7) A person who is guilty of an offence under subsection (1) or (2) shall be liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both;

(b) on summary conviction, to a fine not exceeding the statutory maximum.

(8) No proceedings for any offence which is an offence by virtue of this section shall be instituted—

(a) in England and Wales, except by or with the consent of the Director of Public Prosecutions;

(b) in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.

Textual Amendments

F2 S. 1(1A)(1B) inserted (17.6.2011) by The Regulation of Investigatory Powers (Monetary Penalty Notices and Consents for Interceptions) Regulations 2011 (S.I. 2011/1340), regs. 1(2), 2(1)

F3 Words in s. 1(4) inserted (31.7.2017) by The Criminal Justice (European Investigation Order) Regulations 2017 (S.I. 2017/730), reg. 1(1), Sch. 3 para. 5(2)(a) (with reg. 3)

F4 S. 1(4A)(4B) inserted (31.7.2017) by The Criminal Justice (European Investigation Order) Regulations 2017 (S.I. 2017/730), reg. 1(1), Sch. 3 para. 5(2)(b) (with reg. 3)

Modifications etc. (not altering text)

C1 S. 1(1A) modified (1.9.2017) by The Investigatory Powers Act 2016 (Commencement No. 3 and Transitory, Transitional and Saving Provisions) Regulations 2017 (S.I. 2017/859), reg. 4

Commencement Information

I1 S. 1 wholly in force; S. 1 not in force at Royal Assent see s. 83(2); S. 1 except for subsection (3) in force at 2.10.2000 and S. 1(3) in force at 24.10.2000 by S.I. 2000/2543, arts. 3, 4

2 Meaning and location of “interception” etc. U.K.

(1) In this Act—

• “postal service” means any service which—

  (a)

  consists in the following, or in any one or more of them, namely, the collection, sorting, conveyance, distribution and delivery (whether in the United Kingdom or elsewhere) of postal items; and

  (b)

  is offered or provided as a service the main purpose of which, or one of the main purposes of which, is to make available, or to facilitate, a means of transmission from place to place of postal items containing communications;

• “private telecommunication system” means any telecommunication system which, without itself being a public telecommunication system, is a system in relation to which the following conditions are satisfied—

  (a)

  it is attached, directly or indirectly and whether or not for the purposes of the communication in question, to a public telecommunication system; and

  (b)

  there is apparatus comprised in the system which is both located in the United Kingdom and used (with or without other apparatus) for making the attachment to the public telecommunication system;

• “public postal service” means any postal service which is offered or provided to, or to a substantial section of, the public in any one or more parts of the United Kingdom;

• “public telecommunications service” means any telecommunications service which is offered or provided to, or to a substantial section of, the public in any one or more parts of the United Kingdom;

• “public telecommunication system” means any such parts of a telecommunication system by means of which any public telecommunications service is provided as are located in the United Kingdom;

• “telecommunications service” means any service that consists in the provision of access to, and of facilities for making use of, any telecommunication system (whether or not one provided by the person providing the service); and

• “telecommunication system” means any system (including the apparatus comprised in it) which exists (whether wholly or partly in the United Kingdom or elsewhere) for the purpose of facilitating the transmission of communications by any means involving the use of electrical or electro-magnetic energy.

(2) For the purposes of this Act, but subject to the following provisions of this section, a person intercepts a communication in the course of its transmission by means of a telecommunication system if, and only if, he—

(a) so modifies or interferes with the system, or its operation,

(b) so monitors transmissions made by means of the system, or

(c) so monitors transmissions made by wireless telegraphy to or from apparatus comprised in the system,

as to make some or all of the contents of the communication available, while being transmitted, to a person other than the sender or intended recipient of the communication.

(3) References in this Act to the interception of a communication do not include references to the interception of any communication broadcast for general reception.

(4) For the purposes of this Act the interception of a communication takes place in the United Kingdom if, and only if, the modification, interference or monitoring or, in the case of a postal item, the interception is effected by conduct within the United Kingdom and the communication is either—

(a) intercepted in the course of its transmission by means of a public postal service or public telecommunication system; or

(b) intercepted in the course of its transmission by means of a private telecommunication system in a case in which the sender or intended recipient of the communication is in the United Kingdom.

(5) References in this Act to the interception of a communication in the course of its transmission by means of a postal service or telecommunication system do not include references to—

(a) any conduct that takes place in relation only to so much of the communication as consists in any traffic data comprised in or attached to a communication (whether by the sender or otherwise) for the purposes of any postal service or telecommunication system by means of which it is being or may be transmitted; or

(b) any such conduct, in connection with conduct falling within paragraph (a), as gives a person who is neither the sender nor the intended recipient only so much access to a communication as is necessary for the purpose of identifying traffic data so comprised or attached.

(6) For the purposes of this section references to the modification of a telecommunication system include references to the attachment of any apparatus to, or other modification of or interference with—

(a) any part of the system; or

(b) any wireless telegraphy apparatus used for making transmissions to or from apparatus comprised in the system.

(7) For the purposes of this section the times while a communication is being transmitted by means of a telecommunication system shall be taken to include any time when the system by means of which the communication is being, or has been, transmitted is used for storing it in a manner that enables the intended recipient to collect it or otherwise to have access to it.

(8) For the purposes of this section the cases in which any contents of a communication are to be taken to be made available to a person while being transmitted shall include any case in which any of the contents of the communication, while being transmitted, are diverted or recorded so as to be available to a person subsequently.

[F5 (8A) For the purposes of the definition of “telecommunications service” in subsection (1), the cases in which a service is to be taken to consist in the provision of access to, and of facilities for making use of, a telecommunication system include any case where a service consists in or includes facilitating the creation, management or storage of communications transmitted, or that may be transmitted, by means of such a system.]

(9) In this section “traffic data”, in relation to any communication, means—

(a) any data identifying, or purporting to identify, any person, apparatus or location to or from which the communication is or may be transmitted,

(b) any data identifying or selecting, or purporting to identify or select, apparatus through which, or by means of which, the communication is or may be transmitted,

(c) any data comprising signals for the actuation of apparatus used for the purposes of a telecommunication system for effecting (in whole or in part) the transmission of any communication, and

(d) any data identifying the data or other data as data comprised in or attached to a particular communication,

but that expression includes data identifying a computer file or computer program access to which is obtained, or which is run, by means of the communication to the extent only that the file or program is identified by reference to the apparatus in which it is stored.

(10) In this section—

(a) references, in relation to traffic data comprising signals for the actuation of apparatus, to a telecommunication system by means of which a communication is being or may be transmitted include references to any telecommunication system in which that apparatus is comprised; and

(b) references to traffic data being attached to a communication include references to the data and the communication being logically associated with each other;

and in this section “data”, in relation to a postal item, means anything written on the outside of the item.

(11) In this section “postal item” means any letter, postcard or other such thing in writing as may be used by the sender for imparting information to the recipient, or any packet or parcel.

Textual Amendments

F5 S. 2(8A) inserted (temp.) (17.7.2014) by Data Retention and Investigatory Powers Act 2014 (c. 27), ss. 5, 8(1)(3)

Modifications etc. (not altering text)

C2 S. 2(8A) continued (temp.) (30.12.2016) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 9 para. 9 (with Sch. 9 paras. 7, 8, 10); S.I. 2016/1233, reg. 2(p)

3 Lawful interception without an interception warrant. U.K.

(1) Conduct by any person consisting in the interception of a communication is authorised by this section if the communication is one which F6 . . . is both—

(a) a communication sent by a person who has consented to the interception; and

(b) a communication the intended recipient of which has so consented.

(2) Conduct by any person consisting in the interception of a communication is authorised by this section if—

(a) the communication is one sent by, or intended for, a person who has consented to the interception; and

(b) surveillance by means of that interception has been authorised under Part II.

(3) Conduct consisting in the interception of a communication is authorised by this section if—

(a) it is conduct by or on behalf of a person who provides a postal service or a telecommunications service; and

(b) it takes place for purposes connected with the provision or operation of that service or with the enforcement, in relation to that service, of any enactment relating to the use of postal services or telecommunications services.

[F7 (3B) Conduct consisting in the interception of a communication in the course of its transmission by means of a public postal service is authorised by this section if it is conduct under paragraph 9 of Schedule 7 to the Terrorism Act 2000 (port and border controls).]

(4) Conduct by any person consisting in the interception of a communication in the course of its transmission by means of wireless telegraphy is authorised by this section if it takes place—

(a) with the authority of a designated person under [F8 section 48 of the Wireless Telegraphy Act 2006 (interception and disclosure of wireless telegraphy messages)] ; and

(b) for purposes connected with anything falling within subsection (5).

(5) Each of the following falls within this subsection—

[F9 (a) the grant of wireless telegraphy licences under the Wireless Telegraphy Act 2006;]

(b) the prevention or detection of anything which constitutes interference with wireless telegraphy; and

(c) the enforcement of

[F10 (i) any provision of Part 2 (other than Chapter 2 and sections 27 to 31) or Part 3 of that Act, or

(ii) any enactment not falling within sub-paragraph (i)]

that relates to such interference.

Textual Amendments

F6 Words in s. 3(1) repealed (17.6.2011) by The Regulation of Investigatory Powers (Monetary Penalty Notices and Consents for Interceptions) Regulations 2011 (S.I. 2011/1340), regs. 1(2), 3

F7 S. 3(3B) inserted (12.2.2015) by Counter-Terrorism and Security Act 2015 (c. 6), s. 52(5), Sch. 8 para. 2

F8 Words in s. 3(4)(a) substituted (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), ss. 123, 126, Sch. 7 para. 22(2)

F9 S. 3(5)(a) substituted (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), ss. 123, 126, Sch. 7 para. 22(3)(a)

F10 Words in s. 3(5)(c) substituted (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), ss. 123, 126, Sch. 7 para. 22(3)(b)

4 Power to provide for lawful interception. U.K.

(1) Conduct by any person (“the interceptor”) consisting in the interception of a communication in the course of its transmission by means of a telecommunication system is authorised by this section if—

(a) the interception is carried out for the purpose of obtaining information about the communications of a person who, or who the interceptor has reasonable grounds for believing, is in a country or territory outside the United Kingdom;

(b) the interception relates to the use of a telecommunications service provided to persons in that country or territory which is either—

(i) a public telecommunications service; or

(ii) a telecommunications service that would be a public telecommunications service if the persons to whom it is offered or provided were members of the public in a part of the United Kingdom;

(c) the person who provides that service (whether the interceptor or another person) is required by the law of that country or territory to carry out, secure or facilitate the interception in question;

(d) the situation is one in relation to which such further conditions as may be prescribed by regulations made by the Secretary of State are required to be satisfied before conduct may be treated as authorised by virtue of this subsection; and

(e) the conditions so prescribed are satisfied in relation to that situation.

(2) Subject to subsection (3), the Secretary of State may by regulations authorise any such conduct described in the regulations as appears to him to constitute a legitimate practice reasonably required for the purpose, in connection with the carrying on of any business, of monitoring or keeping a record of—

(a) communications by means of which transactions are entered into in the course of that business; or

(b) other communications relating to that business or taking place in the course of its being carried on.

(3) Nothing in any regulations under subsection (2) shall authorise the interception of any communication except in the course of its transmission using apparatus or services provided by or to the person carrying on the business for use wholly or partly in connection with that business.

(4) Conduct taking place in a prison is authorised by this section if it is conduct in exercise of any power conferred by or under any rules made under section 47 of the M1 Prison Act 1952, section 39 of the M2 Prisons (Scotland) Act 1989 or section 13 of the M3 Prison Act (Northern Ireland) 1953 (prison rules).

(5) Conduct taking place in any hospital premises where high security psychiatric services are provided is authorised by this section if it is conduct in pursuance of, and in accordance with, any direction given under [F11 [F12 section 4(3A)(a) of the National Health Service Act 2006], or section 19 or 23 of the National Health Service (Wales) Act 2006] (directions as to the carrying out of their functions by health bodies) to the body providing those services at those premises.

(6) Conduct taking place in a state hospital is authorised by this section if it is conduct in pursuance of, and in accordance with, any direction given to the State Hospitals Board for Scotland under section 2(5) of the M4 National Health Service (Scotland) Act 1978 (regulations and directions as to the exercise of their functions by health boards) as applied by Article 5(1) of and the Schedule to The M5 State Hospitals Board for Scotland Order 1995 (which applies certain provisions of that Act of 1978 to the State Hospitals Board).

(7) In this section references to a business include references to any activities of a government department, of any public authority or of any person or office holder on whom functions are conferred by or under any enactment.

(8) In this section—

• “government department” includes any part of the Scottish Administration, a Northern Ireland department and [F13 the Welsh Assembly Government];

• “high security psychiatric services” has the same meaning as in [F14 section 4 of the National Health Service Act 2006];

• “hospital premises” has the same meaning as in section 4(3) of that Act; and

• “state hospital” has the same meaning as in the M6 National Health Service (Scotland) Act 1978.

(9) In this section “prison” means—

(a) any prison, young offender institution, young offenders centre or remand centre which is under the general superintendence of, or is provided by, the Secretary of State under the M7 Prison Act 1952 or the M8 Prison Act (Northern Ireland) 1953, or

(b) any prison, young offenders institution or remand centre which is under the general superintendence of the Scottish Ministers under the M9 Prisons (Scotland) Act 1989,

and includes any contracted out prison, within the meaning of Part IV of the M10 Criminal Justice Act 1991 or section 106(4) of the M11 Criminal Justice and Public Order Act 1994, and any legalised police cells within the meaning of section 14 of the M12 Prisons (Scotland) Act 1989.

Textual Amendments

F11 Words in s. 4(5) substituted (1.3.2007) by National Health Service (Consequential Provisions) Act 2006 (c. 43), ss. 2, 8, Sch. 1 para. 208(a) (with Sch. 3 Pt. 1)

F12 Words in s. 4(5) substituted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 98; S.I. 2013/160, art. 2(2) (with arts. 7-9)

F13 Words in s. 4(8) substituted (the amendment coming into force immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) in accordance with art. 1(2)(3) of the amending S.I. and see ss. 46, 161(5) of Government of Wales Act 2006 (c. 32)) by The Government of Wales Act 2006 (Consequential Modifications and Transitional Provisions) Order 2007 (S.I. 2007/1388), art. 1(2)(3), Sch. 1 para. 76(2)

F14 Words in s. 4(8) substituted (1.3.2007) by National Health Service (Consequential Provisions) Act 2006 (c. 43), ss. 2, 8, Sch. 1 para. 208(b) (with Sch. 3 Pt. 1)

Marginal Citations

M1 1952 c. 52.

M2 1989 c. 45.

M3 1953 c. 18 (N.I.).

M4 1978 c. 29.

M5 S.I. 1995/574.

M6 1978 c. 29.

M7 1952 c. 52.

M8 1953 c. 18 (N.I.).

M9 1989 c. 45.

M10 1991 c. 53.

M11 1994 c. 33.

M12 1989 c. 45.

5 Interception with a warrant. U.K.

(1) Subject to the following provisions of this Chapter, the Secretary of State may issue a warrant authorising or requiring the person to whom it is addressed, by any such conduct as may be described in the warrant, to secure any one or more of the following—

(a) the interception in the course of their transmission by means of a postal service or telecommunication system of the communications described in the warrant;

(b) the making, in accordance with an international mutual assistance agreement, of a request for the provision of such assistance in connection with, or in the form of, an interception of communications as may be so described;

(c) the provision, in accordance with an international mutual assistance agreement, to the competent authorities of a country or territory outside the United Kingdom of any such assistance in connection with, or in the form of, an interception of communications as may be so described;

(d) the disclosure, in such manner as may be so described, of intercepted material obtained by any interception authorised or required by the warrant, and of related communications data.

(2) The Secretary of State shall not issue an interception warrant unless he believes—

(a) that the warrant is necessary on grounds falling within subsection (3); and

(b) that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.

(3) Subject to the following provisions of this section, a warrant is necessary on grounds falling within this subsection if it is necessary—

(a) in the interests of national security;

(b) for the purpose of preventing or detecting serious crime;

(c) for the purpose [F15 , in circumstances appearing to the Secretary of State to be relevant to the interests of national security,] of safeguarding the economic well-being of the United Kingdom; or

(d) for the purpose, in circumstances appearing to the Secretary of State to be equivalent to those in which he would issue a warrant by virtue of paragraph (b), of giving effect to the provisions of any international mutual assistance agreement.

(4) The matters to be taken into account in considering whether the requirements of subsection (2) are satisfied in the case of any warrant shall include whether the information which it is thought necessary to obtain under the warrant could reasonably be obtained by other means.

(5) A warrant shall not be considered necessary on the ground falling within subsection (3)(c) unless the information which it is thought necessary to obtain is information relating to the acts or intentions of persons outside the British Islands.

(6) The conduct authorised by an interception warrant shall be taken to include—

(a) all such conduct (including the interception of communications not identified by the warrant) as it is necessary to undertake in order to do what is expressly authorised or required by the warrant;

(b) conduct for obtaining related communications data; and

(c) conduct by any person which is conduct in pursuance of a requirement imposed by or on behalf of the person to whom the warrant is addressed to be provided with assistance with giving effect to the warrant.

Textual Amendments

F15 Words in s. 5(3)(c) inserted (temp.) (17.7.2014) by Data Retention and Investigatory Powers Act 2014 (c. 27), ss. 3(1)(2), 8(1)(3)

Modifications etc. (not altering text)

C3 S. 5 modified (S.) (14.12.2000) by S.I. 2000/3253, arts. 1(1)(2), 2, Sch. 1 para. 2 (with art. 6)

C4 S. 5: functions transferred to the Scottish Ministers (S.) (15.12.2000) by virtue of S.I. 2000/3253, arts. 1(1)(3), 3, Sch. 2 (with art. 6)

C5 S. 5: certain functions modified (9.10.2003) by The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 2003 (S.I. 2003/2617), art. 2, Sch. 1 para. 1

C6 S. 5: transfer of functions (10.10.2003) by The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 2003 (S.I. 2003/2617), art. 3, Sch. 2

C7 S. 5 modified (11.10.2007) by The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2007 (S.I. 2007/2915), arts. 1(2), 2, Sch. 1 para. 1 (with art. 6)

C8 S. 5: functions transferred (12.10.2007) by The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2007 (S.I. 2007/2915), arts. 1(1), 3, Sch. 2 (with art. 6)

C9 S. 5(3)(c) continued (temp.) (30.12.2016) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 9 para. 9 (with Sch. 9 paras. 7, 8, 10); S.I. 2016/1233, reg. 2(p)

Interception warrants U.K.

6 Application for issue of an interception warrant. U.K.

(1) An interception warrant shall not be issued except on an application made by or on behalf of a person specified in subsection (2).

(2) Those persons are—

(a) the Director-General of the Security Service;

(b) the Chief of the Secret Intelligence Service;

(c) the Director of GCHQ;

[F16 (d) the Director General of the National Crime Agency;]

F17 (da) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) the Commissioner of Police of the Metropolis;

(f) the Chief Constable of the Royal Ulster Constabulary;

(g) the chief constable of [F18 the Police Service of Scotland];

(h) [F19 the Commissioners for Her Majesty's Revenue and Customs];

(i) the Chief of Defence Intelligence;

(j) a person who, for the purposes of any international mutual assistance agreement, is the competent authority of a country or territory outside the United Kingdom.

(3) An application for the issue of an interception warrant shall not be made on behalf of a person specified in [F20 paragraph (a), (b), (c), (e), (f), (g), (h), (i) or (j)] subsection (2) except by a person holding office under the Crown.

Textual Amendments

F16 S. 6(2)(d) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 78; S.I. 2013/1682, art. 3(v)

F17 S. 6(2)(da) omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(2)(a)

F18 Words in s. 6(2)(g) substituted (1.4.2013) by The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(2)(b)

F19 Words in s. 6(2)(h) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 6; S.I. 2008/219, art. 2(b)

F20 Words in s. 6(3) inserted (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 178, Sch. 4 para. 132(3); S.I. 2006/378, art. 4(1), Sch. para. 10 (subject to art. 4(2)-(7))

Modifications etc. (not altering text)

C10 S. 6(2)(h) restricted (18.4.2005) by Commissioners for Revenue and Customs Act 2005 (c. 11), ss. 16, 17, 53(1), Sch. 2 Pt. 1 para. 11(2)(a); S. I. 2005/1126, art. 2(2)(d)

7 Issue of warrants. U.K.

(1) An interception warrant shall not be issued except—

(a) under the hand of the Secretary of State [F21 or, in the case of a warrant issued by the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998), a member of the Scottish Executive]; or

(b) in a case falling within subsection (2) [F22 (a) or (b)], under the hand of a senior official.

[F23 ; or

(c) in a case falling within subsection (2)(aa), under the hand of a member of the staff of the Scottish Administration who is a member of the Senior Civil Service and who is designated by the Scottish Ministers as a person under whose hand a warrant may be issued in such a case.]

(2) Those cases are—

(a) an urgent case in which the Secretary of State has himself expressly authorised the issue of the warrant in that case; and

[F24 (aa) an urgent case in which the Scottish Ministers have themselves (by virtue of provision made under section 63 of the Scotland Act 1998) expressly authorised the use of the warrant in that case and a statement of that fact is endorsed on the warrant; and]

(b) a case in which the warrant is for the purposes of a request for assistance made under an international mutual assistance agreement by the competent authorities of a country or territory outside the United Kingdom and either—

(i) it appears that the interception subject is outside the United Kingdom; or

(ii) the interception to which the warrant relates is to take place in relation only to premises outside the United Kingdom.

(3) An interception warrant—

(a) must be addressed to the person falling within section 6(2) by whom, or on whose behalf, the application for the warrant was made; and

(b) in the case of a warrant issued under the hand of a senior official, must contain, according to whatever is applicable—

(i) one of the statements set out in subsection (4); and

(ii) if it contains the statement set out in subsection (4)(b), one of the statements set out in subsection (5).

(4) The statements referred to in subsection (3)(b)(i) are—

(a) a statement that the case is an urgent case in which the Secretary of State has himself expressly authorised the issue of the warrant;

(b) a statement that the warrant is issued for the purposes of a request for assistance made under an international mutual assistance agreement by the competent authorities of a country or territory outside the United Kingdom.

(5) The statements referred to in subsection (3)(b)(ii) are—

(a) a statement that the interception subject appears to be outside the United Kingdom;

(b) a statement that the interception to which the warrant relates is to take place in relation only to premises outside the United Kingdom.

Textual Amendments

F21 Words in s. 7(1)(a) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 4(a) (with art. 6)

F22 Words in s. 7(1)(b) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 4(b) (with art. 6)

F23 S. 7(1)(c) and word immediately preceding it inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 4(c) (with art. 6)

F24 S. 7(2)(aa) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 4(d) (with art. 6)

8 Contents of warrants. U.K.

(1) An interception warrant must name or describe either—

(a) one person as the interception subject; or

(b) a single set of premises as the premises in relation to which the interception to which the warrant relates is to take place.

(2) The provisions of an interception warrant describing communications the interception of which is authorised or required by the warrant must comprise one or more schedules setting out the addresses, numbers, apparatus or other factors, or combination of factors, that are to be used for identifying the communications that may be or are to be intercepted.

(3) Any factor or combination of factors set out in accordance with subsection (2) must be one that identifies communications which are likely to be or to include—

(a) communications from, or intended for, the person named or described in the warrant in accordance with subsection (1); or

(b) communications originating on, or intended for transmission to, the premises so named or described.

(4) Subsections (1) and (2) shall not apply to an interception warrant if—

(a) the description of communications to which the warrant relates confines the conduct authorised or required by the warrant to conduct falling within subsection (5); and

(b) at the time of the issue of the warrant, a certificate applicable to the warrant has been issued by the Secretary of State certifying—

(i) the descriptions of intercepted material the examination of which he considers necessary; and

(ii) that he considers the examination of material of those descriptions necessary as mentioned in section 5(3)(a), (b) or (c).

(5) Conduct falls within this subsection if it consists in—

(a) the interception of external communications in the course of their transmission by means of a telecommunication system; and

(b) any conduct authorised in relation to any such interception by section 5(6).

(6) A certificate for the purposes of subsection (4) shall not be issued except under the hand of the Secretary of State.

9 Duration, cancellation and renewal of warrants. U.K.

(1) An interception warrant—

(a) shall cease to have effect at the end of the relevant period; but

(b) may be renewed, at any time before the end of that period, by an instrument under the hand of the Secretary of State [F25 or, in the case of a warrant issued by the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998), a member of the Scottish Executive] or, in a case falling within section 7(2)(b), under the hand of a senior official.

(2) An interception warrant shall not be renewed under subsection (1) unless the Secretary of State believes that the warrant continues to be necessary on grounds falling within section 5(3).

(3) The Secretary of State shall cancel an interception warrant if he is satisfied that the warrant is no longer necessary on grounds falling within section 5(3).

(4) The Secretary of State shall cancel an interception warrant if, at any time before the end of the relevant period, he is satisfied in a case in which—

(a) the warrant is one which was issued containing the statement set out in section 7(5)(a) or has been renewed by an instrument containing the statement set out in subsection (5)(b)(i) of this section, and

(b) the latest renewal (if any) of the warrant is not a renewal by an instrument under the hand of the Secretary of State,

that the person named or described in the warrant as the interception subject is in the United Kingdom.

(5) An instrument under the hand of a senior official that renews an interception warrant must contain—

(a) a statement that the renewal is for the purposes of a request for assistance made under an international mutual assistance agreement by the competent authorities of a country or territory outside the United Kingdom; and

(b) whichever of the following statements is applicable—

(i) a statement that the interception subject appears to be outside the United Kingdom;

(ii) a statement that the interception to which the warrant relates is to take place in relation only to premises outside the United Kingdom.

(6) In this section “the relevant period”—

(a) in relation to an unrenewed warrant issued in a case falling within section 7(2)(a) under the hand of a senior official, means the period ending with the fifth working day following the day of the warrant’s issue;

[F26 (ab) in relation to an unrenewed warrant which is endorsed under the hand of the Secretary of State with a statement that the issue of the warrant is believed to be necessary on grounds falling within section 5(3)(a) or (c), means the period of six months beginning with the day of the warrant's issue;]

(b) in relation to a renewed warrant the latest renewal of which was by an instrument endorsed under the hand of the Secretary of State with a statement that the renewal is believed to be necessary on grounds falling within section 5(3)(a) or (c), means the period of six months beginning with the day of the warrant’s renewal; and

(c) in all other cases, means the period of three months beginning with the day of the warrant’s issue or, in the case of a warrant that has been renewed, of its latest renewal.

Textual Amendments

F25 Words in s. 9(1)(b) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 5 (with art. 6)

F26 S. 9(6)(ab) inserted (13.4.2006) by Terrorism Act 2006 (c. 11), ss. 32(2), 39(2); S.I. 2006/1013, art. 2(2)(b)

Modifications etc. (not altering text)

C11 S. 9(1)(b)(3) modified (S.) (14.12.2000) by S.I. 2000/3253, arts. 1(1)(2), 2, Sch. 1 para. 3(1) (with art. 6)

S. 9(1)(b)(3): functions transferred to the Scottish Ministers (S.) (15.12.2000) by virtue of S.I. 2000/3253,, arts. 1(1)(3), 3, Sch. 2 (with art. 6)

C12 S. 9(1)(b)(3): certain functions modified (9.10.2003) by The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 2003 (S.I. 2003/2617), art. 2, Sch. 1 para. 2

C13 S. 9(1)(b)(3): transfer of functions (10.10.2003) by The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 2003 (S.I. 2003/2617), art. 3, Sch. 2

C14 S. 9(1)(b) modified (11.10.2007) by The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2007 (S.I. 2007/2915), arts. 1(2), 2, Sch. 1 para. 2 (with art. 6)

C15 S. 9(1)(b): functions transferred (12.10.2007) by The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2007 (S.I. 2007/2915), arts. 1(1), 3, Sch. 2 (with art. 6)

C16 S. 9(3) modified (11.10.2007) by The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2007 (S.I. 2007/2915), arts. 1(2), 2, Sch. 1 para. 2 (with art. 6)

C17 S. 9(3): functions transferred (12.10.2007) by The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2007 (S.I. 2007/2915), arts. 1(1), 3, Sch. 2 (with art. 6)

10 Modification of warrants and certificates. U.K.

(1) The Secretary of State may at any time—

(a) modify the provisions of an interception warrant; or

(b) modify a section 8(4) certificate so as to include in the certified material any material the examination of which he considers to be necessary as mentioned in section 5(3)(a), (b) or (c).

(2) If at any time the Secretary of State considers that any factor set out in a schedule to an interception warrant is no longer relevant for identifying communications which, in the case of that warrant, are likely to be or to include communications falling within section 8(3)(a) or (b), it shall be his duty to modify the warrant by the deletion of that factor.

(3) If at any time the Secretary of State considers that the material certified by a section 8(4) certificate includes any material the examination of which is no longer necessary as mentioned in any of paragraphs (a) to (c) of section 5(3), he shall modify the certificate so as to exclude that material from the certified material.

(4) Subject to subsections (5) to (8), a warrant or certificate shall not be modified under this section except by an instrument under the hand of the Secretary of State or of a senior official.

F27 [(4A) Subject to subsections (5A), (6) and (8), a warrant issued by the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998) shall not be modified under this section except by an instrument under the hand of a member of the Scottish Executive or a member of the staff of the Scottish Administration who is a member of the Senior Civil Service and is designated by the Scottish Ministers as a person under whose hand an instrument may be issued in such a case (in this section referred to as “a designated official”)]

(5) Unscheduled parts of an interception warrant shall not be modified under the hand of a senior official except in an urgent case in which—

(a) the Secretary of State has himself expressly authorised the modification; and

(b) a statement of that fact is endorsed on the modifying instrument.

[F28 (5A) Unscheduled parts of an interception warrant issued by the Scottish Ministers shall not be modified under the hand of a designated official except in an urgent case in which–

(a) they have themselves (by virtue of provision made under section 63 of the Scotland Act 1998) expressly authorised the modification; and

(b) a statement of that fact is endorsed on the modifying instrument]

[F29 (6) Subsection (4) authorises the modification of the scheduled parts of an interception warrant under the hand of a senior official who is either—

(a) the person to whom the warrant is addressed, or

(b) a person holding a position subordinate to that person,

only if the applicable condition specified in subsection (6A) is satisfied and a statement that the condition is satisfied is endorsed on the modifying instrument.

(6A) The applicable condition is—

(a) in the case of an unrenewed warrant, that the warrant is endorsed with a statement that the issue of the warrant is believed to be necessary in the interests of national security; and

(b) in the case of a renewed warrant, that the instrument by which it was last renewed is endorsed with a statement that the renewal is believed to be necessary in the interests of national security.]

(7) A section 8(4) certificate shall not be modified under the hand of a senior official except in an urgent case in which—

(a) the official in question holds a position in respect of which he is expressly authorised by provisions contained in the certificate to modify the certificate on the Secretary of State’s behalf; or

(b) the Secretary of State has himself expressly authorised the modification and a statement of that fact is endorsed on the modifying instrument.

(8) Where modifications in accordance with this subsection are expressly authorised by provision contained in the warrant, the scheduled parts of an interception warrant may, in an urgent case, be modified by an instrument under the hand of—

(a) the person to whom the warrant is addressed; or

(b) a person holding any such position subordinate to that person as may be identified in the provisions of the warrant.

(9) Where—

(a) a warrant or certificate is modified by an instrument under the hand of a person other than the Secretary of State [F30 or, as the case may be, the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998)], and

(b) a statement for the purposes of subsection (5)(b) [F31 , (5A)(b)][F32 , (6)] or (7)(b) is endorsed on the instrument, or the modification is made under subsection (8),

that modification shall cease to have effect at the end of the fifth working day following the day of the instrument’s issue.

(10) For the purposes of this section—

(a) the scheduled parts of an interception warrant are any provisions of the warrant that are contained in a schedule of identifying factors comprised in the warrant for the purposes of section 8(2); and

(b) the modifications that are modifications of the scheduled parts of an interception warrant include the insertion of an additional such schedule in the warrant;

and references in this section to unscheduled parts of an interception warrant, and to their modification, shall be construed accordingly.

Textual Amendments

F27 S. 10(4A) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 6(a) (with art. 6)

F28 S. 10(5A) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 6(b) (with art. 6)

F29 S. 10(6)(6A) substituted (13.4.2006) for s. 10(6) by Terrorism Act 2006 (c. 11), ss. 32(3), 39(2); S.I. 2006/1013, art. 2(2)(b)

F30 Words in s. 10(9)(a) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 6(d)(i) (with art. 6)

F31 Words in s. 10(9)(b) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 6(d)(ii) (with art. 6)

F32 Word in s. 10(9)(b) inserted (13.4.2006) by Terrorism Act 2006 (c. 11), ss. 32(4), 39(2); S.I. 2006/1013, art. 2(2)(b)

Modifications etc. (not altering text)

C18 S. 10(1)(a)(2) modified (S.) (14.12.2000) by S.I. 2000/3253, arts. 1(1)(2), 2, Sch. 1 para. 2 (with art. 6)

S. 10(1)(a)(2): functions transferred to the Scottish Ministers (S.) (15.12.2000) by virtue of S.I. 2000/3253, arts. 1(1)(3), 3, Sch. 2 (with art. 6)

C19 S. 10(1)(a)(2): certain functions modified (9.10.2003) by The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 2003 (S.I. 2003/2617), art. 2, Sch. 1 para. 2

C20 S. 10(1)(a): transfer of functions (10.10.2003) by The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 2003 (S.I. 2003/2617), art. 3, Sch. 2

C21 S. 10(1)(a) modified (11.10.2007) by The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2007 (S.I. 2007/2915), arts. 1(2), 2, Sch. 1 para. 2 (with art. 6)

C22 S. 10(1)(a): functions transferred (12.10.2007) by The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2007 (S.I. 2007/2915), arts. 1(1), 3, Sch. 2 (with art. 6)

C23 S. 10(2): transfer of functions (10.10.2003) by The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 2003 (S.I. 2003/2617), art. 3, Sch. 2

C24 S. 10(2) modified (11.10.2007) by The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2007 (S.I. 2007/2915), arts. 1(2), 2, Sch. 1 para. 2 (with art. 6)

C25 S. 10(2): functions transferred (12.10.2007) by The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2007 (S.I. 2007/2915), arts. 1(1), 3, Sch. 2 (with art. 6)

11 Implementation of warrants. U.K.

(1) Effect may be given to an interception warrant either—

(a) by the person to whom it is addressed; or

(b) by that person acting through, or together with, such other persons as he may require (whether under subsection (2) or otherwise) to provide him with assistance with giving effect to the warrant.

(2) For the purpose of requiring any person to provide assistance in relation to an interception warrant the person to whom it is addressed may—

(a) serve a copy of the warrant on such persons as he considers may be able to provide such assistance; or

(b) make arrangements under which a copy of it is to be or may be so served.

[F33 (2A) A copy of a warrant may be served under subsection (2) on a person outside the United Kingdom (and may relate to conduct outside the United Kingdom).

(2B) Service under subsection (2) of a copy of a warrant on a person outside the United Kingdom may (in addition to electronic or other means of service) be effected in any of the following ways—

(a) by serving it at the person's principal office within the United Kingdom or, if the person has no such office in the United Kingdom, at any place in the United Kingdom where the person carries on business or conducts activities;

(b) if the person has specified an address in the United Kingdom as one at which the person, or someone on the person's behalf, will accept service of documents of the same description as a copy of a warrant, by serving it at that address;

(c) by making it available for inspection (whether to the person or to someone acting on the person's behalf) at a place in the United Kingdom (but this is subject to subsection (2C)).

(2C) Service under subsection (2) of a copy of a warrant on a person outside the United Kingdom may be effected in the way mentioned in paragraph (c) of subsection (2B) only if—

(a) it is not reasonably practicable for service to be effected by any other means (whether as mentioned in subsection (2B)(a) or (b) or otherwise), and

(b) the person to whom the warrant is addressed takes such steps as the person thinks appropriate for the purpose of bringing the contents of the warrant, and the availability of a copy for inspection, to the attention of the person outside the United Kingdom.

The steps mentioned in paragraph (b) must be taken as soon as reasonably practicable after the copy of the warrant is made available for inspection.]

(3) The copy of an interception warrant that is served on any person under subsection (2) may, to the extent authorised—

(a) by the person to whom the warrant is addressed, or

(b) by the arrangements made by him for the purposes of that subsection,

omit any one or more of the schedules to the warrant.

(4) Where a copy of an interception warrant has been served by or on behalf of the person to whom it is addressed on—

(a) a person who provides a postal service,

(b) a person who provides a public telecommunications service, or

(c) a person not falling within paragraph (b) who has control of the whole or any part of a telecommunication system located wholly or partly in the United Kingdom,

it shall (subject to subsection (5)) be the duty of that person [F34 (whether or not the person is in the United Kingdom)] to take all such steps for giving effect to the warrant as are notified to him by or on behalf of the person to whom the warrant is addressed.

(5) A person who is under a duty by virtue of subsection (4) to take steps for giving effect to a warrant shall not be required to take any steps which it is not reasonably practicable for him to take.

[F35 (5A) Where a person outside the United Kingdom is under a duty by virtue of subsection (4) to take any steps in a country or territory outside the United Kingdom for giving effect to a warrant, in determining for the purposes of subsection (5) whether the steps are reasonably practicable for the person to take, regard is to be had (amongst other matters) to—

(a) any requirements or restrictions under the law of that country or territory relevant to the taking of those steps, and

(b) the extent to which it is reasonably practicable to give effect to the warrant in a way that does not breach any such requirements or restrictions.]

(6) For the purposes of subsection (5) the steps which it is reasonably practicable for a person to take in a case in which obligations have been imposed on him by or under section 12 shall include every step which it would have been reasonably practicable for him to take had he complied with all the obligations so imposed on him.

(7) A person who knowingly fails to comply with his duty under subsection (4) shall be guilty of an offence and liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both;

(b) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.

(8) A person’s duty under subsection (4) to take steps for giving effect to a warrant shall be enforceable [F36 (including in the case of a person outside the United Kingdom)] by civil proceedings by the Secretary of State for an injunction, or for specific performance of a statutory duty under section 45 of the M13 Court of Session Act 1988, or for any other appropriate relief.

(9) For the purposes of this Act the provision of assistance with giving effect to an interception warrant includes any disclosure to the person to whom the warrant is addressed, or to persons acting on his behalf, of intercepted material obtained by any interception authorised or required by the warrant, and of any related communications data.

Textual Amendments

F33 S. 11(2A)-(2C) inserted (temp.) (17.7.2014) by Data Retention and Investigatory Powers Act 2014 (c. 27), ss. 4(2), 8(1)(3)

F34 Words in s. 11(4) inserted (temp.) (17.7.2014) by Data Retention and Investigatory Powers Act 2014 (c. 27), ss. 4(3), 8(1)(3)

F35 S. 11(5A) inserted (temp.) (17.7.2014) by Data Retention and Investigatory Powers Act 2014 (c. 27), ss. 4(4), 8(1)(3)

F36 Words in s. 11(8) inserted (temp.) (17.7.2014) by Data Retention and Investigatory Powers Act 2014 (c. 27), ss. 4(5), 8(1)(3)

Modifications etc. (not altering text)

C26 S. 11(2A)-(2C) continued (temp.) (30.12.2016) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 9 para. 9 (with Sch. 9 paras. 7, 8, 10); S.I. 2016/1233, reg. 2(p)

C27 S. 11(4) continued (temp.) (30.12.2016) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 9 para. 9 (with Sch. 9 paras. 7, 8, 10); S.I. 2016/1233, reg. 2(p)

C28 S. 11(5A) continued (temp.) (30.12.2016) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 9 para. 9 (with Sch. 9 paras. 7, 8, 10); S.I. 2016/1233, reg. 2(p)

C29 S. 11(6) modified (8.3.2018) by The Investigatory Powers Act 2016 (Commencement No. 4 and Transitional and Saving Provisions) Regulations 2018 (S.I. 2018/341), reg. 5

C30 S. 11(8) continued (temp.) (30.12.2016) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 9 para. 9 (with Sch. 9 paras. 7, 8, 10); S.I. 2016/1233, reg. 2(p)

Marginal Citations

M13 1988 c. 36.

Interception capability and costs U.K.

F37 12 Maintenance of interception capability. U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F37 Pt. 1 Ch. 1 omitted (12.3.2018 for the omission of ss. 12, 13, 14(2)(c), 27.6.2018 for the omission of ss. 1 (for specified purposes), 3, 4, 17, 18, 19, 8.8.2018 for the omission of ss. 6, 9 for specified purposes, 26.9.2018 for the omission of s. 1 so far as not already in force, 7.11.2018 for the omission of ss. 6 (so far as not already in force), 7, 9 (for specified purposes), 27.12.2018 in so far as not already in force) by virtue of Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 45 (with Sch. 9 paras. 7, 8, 10); S.I. 2018/341, reg. 2(n) (with reg. 3); S.I. 2018/652, regs. 13, 14(c) (with regs. 15(4), 16, 19(1)(6)); S.I. 2018/940, regs. 3(h), 4(a), 5(f)

F37 13 Technical Advisory Board. U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F37 Pt. 1 Ch. 1 omitted (12.3.2018 for the omission of ss. 12, 13, 14(2)(c), 27.6.2018 for the omission of ss. 1 (for specified purposes), 3, 4, 17, 18, 19, 8.8.2018 for the omission of ss. 6, 9 for specified purposes, 26.9.2018 for the omission of s. 1 so far as not already in force, 7.11.2018 for the omission of ss. 6 (so far as not already in force), 7, 9 (for specified purposes), 27.12.2018 in so far as not already in force) by virtue of Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 45 (with Sch. 9 paras. 7, 8, 10); S.I. 2018/341, reg. 2(n) (with reg. 3); S.I. 2018/652, regs. 13, 14(c) (with regs. 15(4), 16, 19(1)(6)); S.I. 2018/940, regs. 3(h), 4(a), 5(f)

14 Grants for interception costs. U.K.

(1) It shall be the duty of the Secretary of State to ensure that such arrangements are in force as are necessary for securing that a person who provides—

(a) a postal service, or

(b) a telecommunications service,

receives such contribution as is, in the circumstances of that person’s case, a fair contribution towards the costs incurred, or likely to be incurred, by that person in consequence of the matters mentioned in subsection (2).

(2) Those matters are—

(a) in relation to a person providing a postal service, the issue of interception warrants relating to communications transmitted by means of that postal service;

(b) in relation to a person providing a telecommunications service, the issue of interception warrants relating to communications transmitted by means of a telecommunication system used for the purposes of that service;

F37 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) For the purpose of complying with his duty under this section, the Secretary of State may make arrangements for payments to be made out of money provided by Parliament.

Textual Amendments

F37 Pt. 1 Ch. 1 omitted (12.3.2018 for the omission of ss. 12, 13, 14(2)(c), 27.6.2018 for the omission of ss. 1 (for specified purposes), 3, 4, 17, 18, 19, 8.8.2018 for the omission of ss. 6, 9 for specified purposes, 26.9.2018 for the omission of s. 1 so far as not already in force, 7.11.2018 for the omission of ss. 6 (so far as not already in force), 7, 9 (for specified purposes), 27.12.2018 in so far as not already in force) by virtue of Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 45 (with Sch. 9 paras. 7, 8, 10); S.I. 2018/341, reg. 2(n) (with reg. 3); S.I. 2018/652, regs. 13, 14(c) (with regs. 15(4), 16, 19(1)(6)); S.I. 2018/940, regs. 3(h), 4(a), 5(f)

Restrictions on use of intercepted material etc. U.K.

15 General safeguards. U.K.

(1) Subject to subsection (6), it shall be the duty of the Secretary of State to ensure, in relation to all interception warrants, that such arrangements are in force as he considers necessary for securing—

(a) that the requirements of subsections (2) and (3) are satisfied in relation to the intercepted material and any related communications data; and

(b) in the case of warrants in relation to which there are section 8(4) certificates, that the requirements of section 16 are also satisfied.

(2) The requirements of this subsection are satisfied in relation to the intercepted material and any related communications data if each of the following—

(a) the number of persons to whom any of the material or data is disclosed or otherwise made available,

(b) the extent to which any of the material or data is disclosed or otherwise made available,

(c) the extent to which any of the material or data is copied, and

(d) the number of copies that are made,

is limited to the minimum that is necessary for the authorised purposes.

(3) The requirements of this subsection are satisfied in relation to the intercepted material and any related communications data if each copy made of any of the material or data (if not destroyed earlier) is destroyed as soon as there are no longer any grounds for retaining it as necessary for any of the authorised purposes.

(4) For the purposes of this section something is necessary for the authorised purposes if, and only if—

(a) it continues to be, or is likely to become, necessary as mentioned in section 5(3);

(b) it is necessary for facilitating the carrying out of any of the functions under this Chapter of the Secretary of State;

(c) it is necessary for facilitating the carrying out of any functions in relation to this Part of the Interception of Communications Commissioner or of the Tribunal;

(d) it is necessary to ensure that a person conducting a criminal prosecution has the information he needs to determine what is required of him by his duty to secure the fairness of the prosecution; or

(e) it is necessary for the performance of any duty imposed on any person by the M14 Public Records Act 1958 or the M15 Public Records Act (Northern Ireland) 1923.

(5) The arrangements for the time being in force under this section for securing that the requirements of subsection (2) are satisfied in relation to the intercepted material or any related communications data must include such arrangements as the Secretary of State considers necessary for securing that every copy of the material or data that is made is stored, for so long as it is retained, in a secure manner.

(6) Arrangements in relation to interception warrants which are made for the purposes of subsection (1)—

(a) shall not be required to secure that the requirements of subsections (2) and (3) are satisfied in so far as they relate to any of the intercepted material or related communications data, or any copy of any such material or data, possession of which has been surrendered to any authorities of a country or territory outside the United Kingdom; but

(b) shall be required to secure, in the case of every such warrant, that possession of the intercepted material and data and of copies of the material or data is surrendered to authorities of a country or territory outside the United Kingdom only if the requirements of subsection (7) are satisfied.

(7) The requirements of this subsection are satisfied in the case of a warrant if it appears to the Secretary of State—

(a) that requirements corresponding to those of subsections (2) and (3) will apply, to such extent (if any) as the Secretary of State thinks fit, in relation to any of the intercepted material or related communications data possession of which, or of any copy of which, is surrendered to the authorities in question; and

(b) that restrictions are in force which would prevent, to such extent (if any) as the Secretary of State thinks fit, the doing of anything in, for the purposes of or in connection with any proceedings outside the United Kingdom which would result in such a disclosure as, by virtue of section 17, could not be made in the United Kingdom.

(8) In this section “copy”, in relation to intercepted material or related communications data, means any of the following (whether or not in documentary form)—

(a) any copy, extract or summary of the material or data which identifies itself as the product of an interception, and

(b) any record referring to an interception which is a record of the identities of the persons to or by whom the intercepted material was sent, or to whom the communications data relates,

and “copied” shall be construed accordingly.

Modifications etc. (not altering text)

C31 S. 15 modified (29.5.2018) by The Investigatory Powers Act 2016 (Commencement No. 5 and Transitional and Saving Provisions) Regulations 2018 (S.I. 2018/652), reg. 16(2)-(4)

C32 S. 15(1): functions transferred to the Scottish Ministers (S.) (15.12.2000) by virtue of S.I. 2000/3253 arts. 1(1)(3), 3, Sch. 2 (with art. 6)

S. 15(1) modified (S.) (14.12.2000) by S.I. 2000/3253, arts. 1(1)(2), 2, Sch. 1 para. 2 (with art. 6)

C33 S. 15(1): certain functions modified (9.10.2003) by The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 2003 (S.I. 2003/2617), art. 2, Sch. 1 para. 2

C34 S. 15(1): transfer of functions (10.10.2003) by The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 2003 (S.I. 2003/2617), art. 3, Sch. 2

C35 S. 15(1) modified (11.10.2007) by The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2007 (S.I. 2007/2915), arts. 1(2), 2, Sch. 1 para. 2 (with art. 6)

C36 S. 15(1): functions transferred (12.10.2007) by The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2007 (S.I. 2007/2915), arts. 1(1), 3, Sch. 2 (with art. 6)

C37 S. 15(1) modified (29.5.2018) by The Investigatory Powers Act 2016 (Commencement No. 5 and Transitional and Saving Provisions) Regulations 2018 (S.I. 2018/652), reg. 15(2)

C38 S. 15(4)(c) modified (1.9.2017) by The Investigatory Powers Act 2016 (Commencement No. 3 and Transitory, Transitional and Saving Provisions) Regulations 2017 (S.I. 2017/859), reg. 4

Marginal Citations

M14 1958 c. 51.

M15 1923 c. 20 (N.I.).

16 Extra safeguards in the case of certificated warrants. U.K.

(1) For the purposes of section 15 the requirements of this section, in the case of a warrant in relation to which there is a section 8(4) certificate, are that the intercepted material is read, looked at or listened to by the persons to whom it becomes available by virtue of the warrant to the extent only that it—

(a) has been certified as material the examination of which is necessary as mentioned in section 5(3)(a), (b) or (c); and

(b) falls within subsection (2).

(2) Subject to subsections (3) and (4), intercepted material falls within this subsection so far only as it is selected to be read, looked at or listened to otherwise than according to a factor which—

(a) is referable to an individual who is known to be for the time being in the British Islands; and

(b) has as its purpose, or one of its purposes, the identification of material contained in communications sent by him, or intended for him.

(3) Intercepted material falls within subsection (2), notwithstanding that it is selected by reference to any such factor as is mentioned in paragraph (a) and (b) of that subsection, if—

(a) it is certified by the Secretary of State for the purposes of section 8(4) that the examination of material selected according to factors referable to the individual in question is necessary as mentioned in subsection 5(3)(a), (b) or (c); and

(b) the material relates only to communications sent during [F38 a period specified in the certificate that is no longer than the permitted maximum] .

[F39 (3A) In subsection (3)(b) ‘the permitted maximum’ means—

(a) in the case of material the examination of which is certified for the purposes of section 8(4) as necessary in the interests of national security, six months; and

(b) in any other case, three months.]

(4) Intercepted material also falls within subsection (2), notwithstanding that it is selected by reference to any such factor as is mentioned in paragraph (a) and (b) of that subsection, if—

(a) the person to whom the warrant is addressed believes, on reasonable grounds, that the circumstances are such that the material would fall within that subsection; or

(b) the conditions set out in subsection (5) below are satisfied in relation to the selection of the material.

(5) Those conditions are satisfied in relation to the selection of intercepted material if—

(a) it has appeared to the person to whom the warrant is addressed that there has been such a relevant change of circumstances as, but for subsection (4)(b), would prevent the intercepted material from falling within subsection (2);

(b) since it first so appeared, a written authorisation to read, look at or listen to the material has been given by a senior official; and

(c) the selection is made before the end of [F40 the permitted period] .

[F41 (5A) In subsection (5)(c) ‘the permitted period’ means—

(a) in the case of material the examination of which is certified for the purposes of section 8(4) as necessary in the interests of national security, the period ending with the end of the fifth working day after it first appeared as mentioned in subsection (5)(a) to the person to whom the warrant is addressed; and

(b) in any other case, the period ending with the end of the first working day after it first so appeared to that person.]

(6) References in this section to its appearing that there has been a relevant change of circumstances are references to its appearing either—

(a) that the individual in question has entered the British Islands; or

(b) that a belief by the person to whom the warrant is addressed in the individual’s presence outside the British Islands was in fact mistaken.

Textual Amendments

F38 Words in s. 16(3)(b) substituted (13.4.2006) by Terrorism Act 2006 (c. 11), ss. 32(5)(a), 39(2); S.I. 2006/1013, art. 2(2)(b)

F39 S. 16(3A) inserted (13.4.2006) by Terrorism Act 2006 (c. 11), ss. 32(6), 39(2); S.I. 2006/1013, art. 2(2)(b)

F40 Words in s. 16(5)(c) substituted (13.4.2006) by Terrorism Act 2006 (c. 11), ss. 32(5)(b), 39(2); S.I. 2006/1013, art. 2(2)(b)

F41 S. 16(5A) inserted (13.4.2006) by Terrorism Act 2006 (c. 11), ss. 32(7), 39(2); S.I. 2006/1013, art. 2(2)(b)

Modifications etc. (not altering text)

C39 S. 16 modified (temp.) (29.5.2018) by The Investigatory Powers Act 2016 (Commencement No. 5 and Transitional and Saving Provisions) Regulations 2018 (S.I. 2018/652), reg. 15(3)(b)

17 Exclusion of matters from legal proceedings. U.K.

(1) Subject to section 18, no evidence shall be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of or in connection with any legal proceedings [F42 or Inquiries Act proceedings] which (in any manner)—

(a) discloses, in circumstances from which its origin in anything falling within subsection (2) may be inferred, any of the contents of an intercepted communication or any related communications data; or

(b) tends (apart from any such disclosure) to suggest that anything falling within subsection (2) has or may have occurred or be going to occur.

(2) The following fall within this subsection—

(a) conduct by a person falling within subsection (3) that was or would be an offence under section 1(1) or (2) of this Act or under section 1 of the M16 Interception of Communications Act 1985;

(b) a breach by the Secretary of State of his duty under section 1(4) of this Act;

(c) the issue of an interception warrant or of a warrant under the M17 Interception of Communications Act 1985;

(d) the making of an application by any person for an interception warrant, or for a warrant under that Act;

(e) the imposition of any requirement on any person to provide assistance with giving effect to an interception warrant.

(3) The persons referred to in subsection (2)(a) are—

(a) any person to whom a warrant under this Chapter may be addressed;

(b) any person holding office under the Crown;

F43 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F44 (ca) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) any person employed by or for the purposes of a police force;

(f) any person providing a postal service or employed for the purposes of any business of providing such a service; and

(g) any person providing a public telecommunications service or employed for the purposes of any business of providing such a service.

(4) [F45 In this section—

• “Inquiries Act proceedings” means proceedings of an inquiry under the Inquiries Act 2005;

• “intercepted communications” means] any communication intercepted in the course of its transmission by means of a postal service or telecommunication system.

Textual Amendments

F42 Words in s. 17(1) inserted (7.6.2005) by Inquiries Act 2005 (c. 12), ss. 48, 51, Sch. 2 para. 20(2) (with ss. 44, 50); S.I. 2005/1432, art. 2

F43 S. 17(3)(c) omitted (7.10.2013) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 79; S.I. 2013/1682, art. 3(v)

F44 S. 17(3)(ca) omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(3)

F45 Words in s. 17(4) substituted (7.6.2005) by Inquiries Act 2005 (c. 12), ss. 48, 51, Sch. 2 para. 20(3) (with ss. 44, 50); S.I. 2005/1432, art. 2

Marginal Citations

M16 1985 c. 56.

M17 1985 c. 56.

18 Exceptions to section 17. U.K.

(1) Section 17(1) shall not apply in relation to—

(a) any proceedings for a relevant offence;

(b) any civil proceedings under section 11(8);

(c) any proceedings before the Tribunal;

(d) any proceedings on an appeal or review for which provision is made by an order under section 67(8);

[F46 (dza) any proceedings before an employment tribunal, or (in Northern Ireland) an industrial tribunal, where the applicant or the applicant's representatives are excluded for all or part of the proceedings pursuant to—

(i) a direction to the tribunal by virtue of section 10(5)(b) or (c) of the Employment Tribunals Act 1996 or (as the case may be) Article 12(5)(b) or (c) of the Industrial Tribunals (Northern Ireland) Order 1996 (S.I. 1996/1921 (N.I. 18)) (exclusion from Crown employment proceedings by direction of Minister in interests of national security), or

(ii) a determination of the tribunal by virtue of section 10(6) of that Act or (as the case may be) Article 12(6) of that Order (determination by tribunal in interests of national security),

or any proceedings arising out of such proceedings;

(dzb) any proceedings on an appeal under Article 80(2) of the Fair Employment and Treatment (Northern Ireland) Order 1998 (S.I. 1998/3162 (N.I. 21)) where—

(i) the appeal relates to a claim of discrimination in contravention of Part 3 of that Order (employment cases) and to a certificate of the Secretary of State that the act concerned was justified for the purpose of safeguarding national security, and

(ii) a party to the appeal or the party's representatives are excluded for all or part of the proceedings by virtue of section 91(4)(b) of the Northern Ireland Act 1998,

or any proceedings arising out of such proceedings;]

(da) F47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F48 (db) any financial restrictions proceedings as defined in section 65 of the Counter-Terrorism Act 2008, or any proceedings arising out of such proceedings;]

[F49 (dc) any proceedings—

(i) on an appeal under section 26, or an application under section 27, of the Terrorist Asset-Freezing etc. Act 2010 (appeals and reviews by the court), or

(ii) on a claim arising from any matter to which such an appeal or application relates,

or any proceedings arising out of such proceedings;]

[F50 (dd) any TPIM proceedings (within the meaning of the Terrorism Prevention and Investigation Measures Act 2011) or any proceedings arising out of such proceedings;]

[F51 (de) any TEO proceedings (within the meaning given by paragraph 1 of Schedule 3 to the Counter-Terrorism and Security Act 2015 (temporary exclusion orders: proceedings)) or any proceedings arising out of such proceedings;]

(e) any proceedings before the Special Immigration Appeals Commission or any proceedings arising out of proceedings before that Commission; F52 ...

(f) any proceedings before the Proscribed Organisations Appeal Commission or any proceedings arising out of proceedings before that Commission.

[F53 , or]

[F53 (g) any section 6 proceedings within the meaning given by section 14(1) of the Justice and Security Act 2013 (certain civil proceedings in which closed material applications may be made).]

(2) Subsection (1) shall not, by virtue of [F54 paragraphs [F55 (dza)] to [F56 (g)]], authorise the disclosure of anything—

[F57 (zza) in the case of proceedings falling within paragraph (dza), to—

(i) the person who is or was the applicant in the proceedings before the employment or industrial tribunal, or

(ii) any person who for the purposes of proceedings so falling (but otherwise than by virtue of appointment as a special advocate) represents that person;

(zzb) in the case of proceedings falling within paragraph (dzb), to—

(i) any person who is or was excluded from all or part of the proceedings on appeal under Article 80(2) of the Fair Employment and Treatment (Northern Ireland) Order 1998, or

(ii) any person who for the purposes of proceedings so falling (but otherwise than by virtue of appointment as a special advocate) represents that person;]

F58 (za) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F59 (zb) in the case of proceedings falling within paragraph (db) [F60 or (dc)], to—

(i) a person, other than the Treasury, who is or was a party to the proceedings, or

(ii) any person who for the purposes of the proceedings (but otherwise than by virtue of appointment as a special advocate) represents a person falling within sub-paragraph (i);]

[F61 (zc) in the case of proceedings falling within paragraph (dd), to—

(i) a person, other than the Secretary of State, who is or was a party to the proceedings, or

(ii) any person who for the purposes of the proceedings (but otherwise than by virtue of appointment as a special advocate under Schedule 4 to the Terrorism Prevention and Investigation Measures Act 2011) represents a person falling within sub-paragraph (i);]

[F62 (zd) in the case of proceedings falling within paragraph (de), to—

(i) a person, other than the Secretary of State, who is or was a party to the proceedings, or

(ii) any person who for the purposes of the proceedings (but otherwise than by virtue of appointment as a special advocate under Schedule 3 to the Counter-Terrorism and Security Act 2015) represents a person falling within sub-paragraph (i);]

(a) in the case of any proceedings falling within paragraph (e), to—

(i) the appellant [F63 or (as the case may be) applicant] to the Special Immigration Appeals Commission; or

(ii) any person who for the purposes of any proceedings so falling (but otherwise than by virtue of an appointment under section 6 of the M18 Special Immigration Appeals Commission Act 1997) represents that appellant [F64 or applicant];

F65 ...

(b) in the case of proceedings falling within paragraph (f), to—

(i) the applicant to the Proscribed Organisations Appeal Commission;

(ii) the organisation concerned (if different);

(iii) any person designated under paragraph 6 of Schedule 3 to the Terrorism Act 2000 to conduct proceedings so falling on behalf of that organisation; or

(iv) any person who for the purposes of any proceedings so falling (but otherwise than by virtue of an appointment under paragraph 7 of that Schedule) represents that applicant or that organisation.

[F66 (c) in the case of proceedings falling within paragraph (g) where the only relevant person is the Secretary of State, to—

(i) a person, other than the Secretary of State, who is or was a party to the proceedings; or

(ii) any person who for the purposes of the proceedings (but otherwise than by virtue of appointment as a special advocate) represents a person falling within sub-paragraph (i); or

(d) in the case of proceedings falling within paragraph (g) where the Secretary of State is not the only relevant person or is not a relevant person but is a party to the proceedings, to—

(i) a person, other than the relevant person concerned or the Secretary of State, who is or was a party to the proceedings; or

(ii) any person who for the purposes of the proceedings (but otherwise than by virtue of appointment as a special advocate) represents a person falling within sub-paragraph (i).]

[F67 (2A) In subsection (2)(c) and (d) “relevant person”, in relation to proceedings falling within subsection (1)(g), has the meaning given by section 14(1) of the Justice and Security Act 2013.]

(3) Section 17(1) shall not prohibit anything done in, for the purposes of, or in connection with, so much of any legal proceedings as relates to the fairness or unfairness of a dismissal on the grounds of any conduct constituting an offence under section 1(1) or (2), 11(7) or 19 of this Act, or section 1 of the M19 Interception of Communications Act 1985.

(4) Section 17(1)(a) shall not prohibit the disclosure of any of the contents of a communication if the interception of that communication was lawful by virtue of section 1(5)(c), 3 or 4.

(5) Where any disclosure is proposed to be or has been made on the grounds that it is authorised by subsection (4), section 17(1) shall not prohibit the doing of anything in, or for the purposes of, so much of any F68 . . . proceedings as relates to the question whether that disclosure is or was so authorised.

(6) Section 17(1)(b) shall not prohibit the doing of anything that discloses any conduct of a person for which he has been convicted of an offence under section 1(1) or (2), 11(7) or 19 of this Act, or section 1 of the M20 Interception of Communications Act 1985.

(7) Nothing in section 17(1) shall prohibit any such disclosure of any information that continues to be available for disclosure as is confined to—

(a) a disclosure to a person conducting a criminal prosecution for the purpose only of enabling that person to determine what is required of him by his duty to secure the fairness of the prosecution; F69 . . .

(b) a disclosure to a relevant judge in a case in which that judge has ordered the disclosure to be made to him alone [F70 ; or

[F71 (c) a disclosure to the panel of an inquiry held under the Inquiries Act 2005 or to a person appointed as counsel to such an inquiry where, in the course of the inquiry, the panel has ordered the disclosure to be made to the panel alone or (as the case may be) to the panel and the person appointed as counsel to the inquiry; or]]

(8) A relevant judge shall not order a disclosure under subsection (7)(b) except where he is satisfied that the exceptional circumstances of the case make the disclosure essential in the interests of justice.

[F72 (8A) The panel of an inquiry shall not order a disclosure under subsection (7)(c) except where it is satisfied that the exceptional circumstances of the case make the disclosure essential to enable the inquiry to fulfil its terms of reference.]

(9) Subject to subsection (10), where in any criminal proceedings—

(a) a relevant judge does order a disclosure under subsection (7)(b), and

(b) in consequence of that disclosure he is of the opinion that there are exceptional circumstances requiring him to do so,

he may direct the person conducting the prosecution to make for the purposes of the proceedings any such admission of fact as that judge thinks essential in the interests of justice.

(10) Nothing in any direction under subsection (9) shall authorise or require anything to be done in contravention of section 17(1).

(11) In this section “a relevant judge” means—

(a) any judge of the High Court or of the Crown Court or any Circuit judge;

(b) any judge of the High Court of Justiciary or any sheriff;

[F73 (c) in relation to proceedings before the Court Martial, the judge advocate for those proceedings; or]

(d) any person holding any such judicial office as entitles him to exercise the jurisdiction of a judge falling within paragraph (a) or (b).

(12) In this section “relevant offence” means—

(a) an offence under any provision of this Act;

(b) an offence under section 1 of the M21 Interception of Communications Act 1985;

(c) an offence under [F74 section 47 or 48 of the Wireless Telegraphy Act 2006];

(d) an offence under F75 . . . [F76 section 83 or 84 of the Postal Services Act 2000];

F77 (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f) an offence under section 4 of the M22 Official Secrets Act 1989 relating to any such information, document or article as is mentioned in subsection (3)(a) of that section;

(g) an offence under section 1 or 2 of the M23 Official Secrets Act 1911 relating to any sketch, plan, model, article, note, document or information which incorporates or relates to the contents of any intercepted communication or any related communications data or tends to suggest as mentioned in section 17(1)(b) of this Act;

(h) perjury committed in the course of any proceedings mentioned in subsection (1) or (3) of this section;

(i) attempting or conspiring to commit, or aiding, abetting, counselling or procuring the commission of, an offence falling within any of the preceding paragraphs; and

(j) contempt of court committed in the course of, or in relation to, any proceedings mentioned in subsection (1) or (3) of this section.

(13) In subsection (12) “intercepted communication” has the same meaning as in section 17.

Textual Amendments

F46 S. 18(1)(dza)(dzb) inserted (25.6.2013) by Justice and Security Act 2013 (c. 18), ss. 16(2), 20(1); S.I. 2013/1482, art. 2 (with arts. 3, 4)

F47 S. 18(1)(da) omitted (15.12.2011) by virtue of Terrorism Prevention and Investigation Measures Act 2011 (c. 23), ss. 29(3), 31(2), Sch. 7 para. 4(2)(a) (with Sch. 8)

F48 S. 18(1)(db) inserted (27.11.2008) by Counter-Terrorism Act 2008 (c. 28), ss. 69(2), 100(2) (with s. 101(2))

F49 S. 18(1)(dc) inserted (17.12.2010) by Terrorist Asset-Freezing etc. Act 2010 (c. 38), ss. 28(2), 55(1) (with s. 44)

F50 S. 18(1)(dd) inserted (15.12.2011) by Terrorism Prevention and Investigation Measures Act 2011 (c. 23), ss. 29(3), 31(2), Sch. 7 para. 4(2)(b) (with Sch. 8)

F51 S. 18(1)(de) inserted (12.2.2015) by Counter-Terrorism and Security Act 2015 (c. 6), ss. 15(3)(a), 52(5)

F52 Word in s. 18(1)(e) repealed (25.6.2013) by Justice and Security Act 2013 (c. 18), s. 20(1), Sch. 2 para. 11(2)(a) (with Sch. 3 para. 2); S.I. 2013/1482, art. 2 (with arts. 3, 4)

F53 S. 18(1)(g) and word inserted (25.6.2013) by Justice and Security Act 2013 (c. 18), s. 20(1), Sch. 2 para. 11(2)(b) (with Sch. 3 para. 2); S.I. 2013/1482, art. 2 (with arts. 3, 4)

F54 Words in s. 18(2) substituted (11.3.2005) by Prevention of Terrorism Act 2005 (c. 2), s. 11, Sch. para. 9(3)

F55 Word in s. 18(2) substituted (25.6.2013) by Justice and Security Act 2013 (c. 18), ss. 16(3)(a), 20(1); S.I. 2013/1482, art. 2 (with arts. 3, 4)

F56 Word in s. 18(2) substituted (25.6.2013) by Justice and Security Act 2013 (c. 18), s. 20(1), Sch. 2 para. 11(3)(a) (with Sch. 3 para. 2); S.I. 2013/1482, art. 2 (with arts. 3, 4)

F57 S. 18(2)(zza)(zzb) inserted (25.6.2013) by Justice and Security Act 2013 (c. 18), ss. 16(3)(b), 20(1); S.I. 2013/1482, art. 2 (with arts. 3, 4)

F58 S. 18(2)(za) omitted (15.12.2011) by virtue of Terrorism Prevention and Investigation Measures Act 2011(c. 23), ss. 29(3), 31(2), {Sch. 7 para. 4(3)(b)} (with Sch. 8)

F59 S. 18(2)(zb) inserted (27.11.2008) by Counter-Terrorism Act 2008 (c. 28), ss. 69(3), 100(2) (with s. 101(2))

F60 Words in s. 18(2)(zb) inserted (17.12.2010) by Terrorist Asset-Freezing etc. Act 2010 (c. 38), ss. 28(3), 55(1) (with s. 44)

F61 S. 18(2)(zc) inserted (15.12.2011) by Terrorism Prevention and Investigation Measures Act 2011(c. 23), ss. 29(3), 31(2), {Sch. 7 para. 4(3)(c)} (with Sch. 8)

F62 S. 18(2)(zd) inserted (12.2.2015) by Counter-Terrorism and Security Act 2015 (c. 6), ss. 15(3)(b), 52(5)

F63 Words in s. 18(2)(a)(i) inserted (25.6.2013) by Justice and Security Act 2013 (c. 18), s. 20(1), Sch. 2 para. 11(3)(b)(i); S.I. 2013/1482, art. 2 (with arts. 3, 4)

F64 Words in s. 18(2)(a)(ii) inserted (25.6.2013) by Justice and Security Act 2013 (c. 18), s. 20(1), Sch. 2 para. 11(3)(b)(ii); S.I. 2013/1482, art. 2 (with arts. 3, 4)

F65 Word in s. 18(2)(a)(ii) repealed (25.6.2013) by Justice and Security Act 2013 (c. 18), s. 20(1), Sch. 2 para. 11(3)(b)(iii) (with Sch. 3 para. 2); S.I. 2013/1482, art. 2 (with arts. 3, 4)

F66 S. 18(2)(c)(d) inserted (25.6.2013) by Justice and Security Act 2013 (c. 18), s. 20(1), Sch. 2 para. 11(3)(c) (with Sch. 3 para. 2); S.I. 2013/1482, art. 2 (with arts. 3, 4)

F67 S. 18(2A) inserted (25.6.2013) by Justice and Security Act 2013 (c. 18), s. 20(1), Sch. 2 para. 11(4) (with Sch. 3 para. 2); S.I. 2013/1482, art. 2 (with arts. 3, 4)

F68 Word in s. 18(5) repealed (7.6.2005) by Inquiries Act 2005 (c. 12), ss. 48, 49, 51, Sch. 2 para. 21(2), Sch. 3 (with ss. 44, 50); S.I. 2005/1432, art. 2

F69 Word in s. 18(7) repealed (7.6.2005) by Inquiries Act 2005 (c. 12), ss. 49, 51, Sch. 3 (with ss. 44, 50); S.I. 2005/1432, art. 2

F70 S. 18(7)(c) and word inserted (7.6.2005) by Inquiries Act 2005 (c. 12), ss. 48, 51, Sch. 2 para. 21(3) (with ss. 44, 50); S.I. 2005/1432, art. 2

F71 S. 18(7)(c) substituted (16.2.2009) by Counter-Terrorism Act 2008 (c. 28), ss. 91, 100, s. 74(1)(2) (with s. 101(2)); S.I. 2009/58, art. 2(b)

F72 S. 18(8A) inserted (7.6.2005) by Inquiries Act 2005 (c. 12), ss. 48, 51, Sch. 2 para. 21(4) (with ss. 44, 50); S.I. 2005/1432, art. 2

F73 S. 18(11)(c) substituted (28.3.2009 for specified purposes and otherwise 31.10.2009) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 169; S.I. 2009/812, art. 3 (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F74 Words in s. 18(12)(c) substituted (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), ss. 123, 126, Sch. 7 para. 23

F75 Words in s. 18(12)(d) repealed (26.3.2001) by S.I. 2001/1149, art. 3(2), Sch. 2 (with art. 4(11))

F76 Words in s. 18(12)(d) substituted (26.3.2001) by S.I. 2001/1149, art. 3(1), Sch. 1 para. 135(2) (with art. 4(8))

F77 S. 18(12)(e) repealed (25.7.2003 for specified purposes, 29.12.2003 for further specified purposes) by Communications Act 2003 (c. 21), ss. 406, 408, 411, Sch. 19(1) (with transitional provisions in Sch. 18); S.I. 2003/1900, arts. 1(2), 2(1), 3(1), Sch. 1; S.I. 2003/3142, art. 3(2) (with art. 11)

Marginal Citations

M18 1997 c. 68.

M19 1985 c. 56.

M20 1985 c. 56.

M21 1985 c. 56.

M22 1989 c. 6.

M23 1911 c. 28.

19 Offence for unauthorised disclosures. U.K.

(1) Where an interception warrant has been issued or renewed, it shall be the duty of every person falling within subsection (2) to keep secret all the matters mentioned in subsection (3).

(2) The persons falling within this subsection are—

(a) the persons specified in section 6(2);

(b) every person holding office under the Crown;

F78 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F79 (ca) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) every person employed by or for the purposes of a police force;

(f) persons providing postal services or employed for the purposes of any business of providing such a service;

(g) persons providing public telecommunications services or employed for the purposes of any business of providing such a service;

(h) persons having control of the whole or any part of a telecommunication system located wholly or partly in the United Kingdom.

(3) Those matters are—

(a) the existence and contents of the warrant and of any section 8(4) certificate in relation to the warrant;

(b) the details of the issue of the warrant and of any renewal or modification of the warrant or of any such certificate;

(c) the existence and contents of any requirement to provide assistance with giving effect to the warrant;

(d) the steps taken in pursuance of the warrant or of any such requirement; and

(e) everything in the intercepted material, together with any related communications data.

(4) A person who makes a disclosure to another of anything that he is required to keep secret under this section shall be guilty of an offence and liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both;

(b) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.

(5) In proceedings against any person for an offence under this section in respect of any disclosure, it shall be a defence for that person to show that he could not reasonably have been expected, after first becoming aware of the matter disclosed, to take steps to prevent the disclosure.

(6) In proceedings against any person for an offence under this section in respect of any disclosure, it shall be a defence for that person to show that—

(a) the disclosure was made by or to a professional legal adviser in connection with the giving, by the adviser to any client of his, of advice about the effect of provisions of this Chapter; and

(b) the person to whom or, as the case may be, by whom it was made was the client or a representative of the client.

(7) In proceedings against any person for an offence under this section in respect of any disclosure, it shall be a defence for that person to show that the disclosure was made by a legal adviser—

(a) in contemplation of, or in connection with, any legal proceedings; and

(b) for the purposes of those proceedings.

(8) Neither subsection (6) nor subsection (7) applies in the case of a disclosure made with a view to furthering any criminal purpose.

(9) In proceedings against any person for an offence under this section in respect of any disclosure, it shall be a defence for that person to show that the disclosure was confined to a disclosure made to the Interception of Communications Commissioner or authorised—

(a) by that Commissioner;

(b) by the warrant or the person to whom the warrant is or was addressed;

(c) by the terms of the requirement to provide assistance; or

(d) by section 11(9).

Textual Amendments

F78 S. 19(2)(c) omitted (7.10.2013) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 80; S.I. 2013/1682, art. 3(v)

F79 S. 19(2)(ca) omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(4)

Modifications etc. (not altering text)

C40 S. 19(9) modified (1.9.2017) by The Investigatory Powers Act 2016 (Commencement No. 3 and Transitory, Transitional and Saving Provisions) Regulations 2017 (S.I. 2017/859), reg. 4

Interpretation of Chapter I U.K.

20 Interpretation of Chapter I. U.K.

In this Chapter—

• “certified”, in relation to a section 8(4) certificate, means of a description certified by the certificate as a description of material the examination of which the Secretary of State considers necessary;

• “external communication” means a communication sent or received outside the British Islands;

• “intercepted material”, in relation to an interception warrant, means the contents of any communications intercepted by an interception to which the warrant relates;

• “the interception subject”, in relation to an interception warrant, means the person about whose communications information is sought by the interception to which the warrant relates;

• “international mutual assistance agreement” means an international agreement designated for the purposes of section 1(4) [F80 or Directive 2014/41/EU of the European Parliament and of the Council];

• “related communications data”, in relation to a communication intercepted in the course of its transmission by means of a postal service or telecommunication system, means so much of any communications data (within the meaning of Chapter II of this Part) as—

  (a)

  is obtained by, or in connection with, the interception; and

  (b)

  relates to the communication or to the sender or recipient, or intended recipient, of the communication;

• “section 8(4) certificate” means any certificate issued for the purposes of section 8(4).]

Textual Amendments

F80 Words in s. 20 inserted (31.7.2017) by The Criminal Justice (European Investigation Order) Regulations 2017 (S.I. 2017/730), reg. 1(1), Sch. 3 para. 5(3) (with reg. 3)

Chapter II U.K. Acquisition and disclosure of communications data

21 Lawful acquisition and disclosure of communications data. U.K.

(1) This Chapter applies to—

(a) any conduct in relation to a postal service or telecommunication system for obtaining communications data, other than conduct consisting in the interception of communications in the course of their transmission by means of such a service or system; and

(b) the disclosure to any person of communications data.

(2) Conduct to which this Chapter applies shall be lawful for all purposes if—

(a) it is conduct in which any person is authorised or required to engage by an authorisation or notice granted or given under this Chapter; and

(b) the conduct is in accordance with, or in pursuance of, the authorisation or requirement.

(3) A person shall not be subject to any civil liability in respect of any conduct of his which—

(a) is incidental to any conduct that is lawful by virtue of subsection (2); and

(b) is not itself conduct an authorisation or warrant for which is capable of being granted under a relevant enactment and might reasonably have been expected to have been sought in the case in question.

(4) In this Chapter “communications data” means any of the following—

(a) any traffic data comprised in or attached to a communication (whether by the sender or otherwise) for the purposes of any postal service or telecommunication system by means of which it is being or may be transmitted;

(b) any information which includes none of the contents of a communication (apart from any information falling within paragraph (a)) and is about the use made by any person—

(i) of any postal service or telecommunications service; or

(ii) in connection with the provision to or use by any person of any telecommunications service, of any part of a telecommunication system;

(c) any information not falling within paragraph (a) or (b) that is held or obtained, in relation to persons to whom he provides the service, by a person providing a postal service or telecommunications service.

(5) In this section “relevant enactment” means—

(a) an enactment contained in this Act;

(b) section 5 of the M24 Intelligence Services Act 1994 (warrants for the intelligence services); or

(c) an enactment contained in Part III of the M25 Police Act 1997 (powers of the police and of [F81 officers of Revenue and Customs).]

(6) In this section “traffic data”, in relation to any communication, means—

(a) any data identifying, or purporting to identify, any person, apparatus or location to or from which the communication is or may be transmitted,

(b) any data identifying or selecting, or purporting to identify or select, apparatus through which, or by means of which, the communication is or may be transmitted,

(c) any data comprising signals for the actuation of apparatus used for the purposes of a telecommunication system for effecting (in whole or in part) the transmission of any communication, and

(d) any data identifying the data or other data as data comprised in or attached to a particular communication,

but that expression includes data identifying a computer file or computer program access to which is obtained, or which is run, by means of the communication to the extent only that the file or program is identified by reference to the apparatus in which it is stored.

(7) In this section—

(a) references, in relation to traffic data comprising signals for the actuation of apparatus, to a telecommunication system by means of which a communication is being or may be transmitted include references to any telecommunication system in which that apparatus is comprised; and

(b) references to traffic data being attached to a communication include references to the data and the communication being logically associated with each other;

and in this section “data”, in relation to a postal item, means anything written on the outside of the item.

Textual Amendments

F81 Words in s. 21(5)(c) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 7; S.I. 2008/219, art. 2(b)

Commencement Information

I2 S. 21 wholly in force; s. 21 not in force at Royal Assent see s. 83(2); S. 21(4) in force for certain purposes at 2.10.2000 by S.I. 2000/2543, art. 3; s. 21 wholly in force at 5.1.2004 by S.I. 2003./3140, {art. 2(a)}

Marginal Citations

M24 1994 c. 13.

M25 1997 c. 50.

22 Obtaining and disclosing communications data. U.K.

(1) This section applies where a person designated for the purposes of this Chapter believes that it is necessary on grounds falling within subsection (2) to obtain any communications data.

(2) It is necessary on grounds falling within this subsection to obtain communications data if it is necessary—

(a) in the interests of national security;

(b) for the purpose of preventing or detecting crime or of preventing disorder;

(c) in the interests of the economic well-being of the United Kingdom [F82 so far as those interests are also relevant to the interests of national security];

(d) in the interests of public safety;

(e) for the purpose of protecting public health;

(f) for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department;

(g) for the purpose, in an emergency, of preventing death or injury or any damage to a person’s physical or mental health, or of mitigating any injury or damage to a person’s physical or mental health; or

(h) for any purpose (not falling within paragraphs (a) to (g)) which is specified for the purposes of this subsection by an order made by the Secretary of State.

(3) Subject to subsection (5), the designated person may grant an authorisation for persons holding offices, ranks or positions with the same relevant public authority as the designated person to engage in any conduct to which this Chapter applies.

[F83 (3A) Subsection (3B) applies if—

(a) a person is the designated person by reference to an office, rank or position with a police force; and

(b) the chief officer of police of that force has made an agreement under section 23(1) of the Police Act 1996 with the chief officer of police of one or more other police forces.

(3B) The designated person may grant an authorisation for persons holding offices, ranks or positions with a collaborative force to engage in any conduct to which this Chapter applies.

(3C) For the purposes of subsection (3B) a police force is a collaborative force if—

(a) its chief officer of police is a party to the agreement mentioned in subsection (3A)(b); and

(b) the persons holding offices, ranks or positions with it are permitted by the terms of the agreement to be granted authorisations by the designated person.

(3D) A reference in subsections (3A) to (3C) to a police force is to the following—

(a) any police force maintained under section 2 of the Police Act 1996 (police forces in England and Wales outside London);

(b) the metropolitan police force; and

(c) the City of London police force.

F84 (3E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F84 (3F) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F84 (3G) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F84 (3H) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3I) [F85 Subsection (3B) is] subject to subsection (5).]

(4) Subject to subsection (5), where it appears to the designated person that a postal or telecommunications operator is or may be in possession of, or be capable of obtaining, any communications data, the designated person may, by notice to the postal or telecommunications operator, require the operator—

(a) if the operator is not already in possession of the data, to obtain the data; and

(b) in any case, to disclose all of the data in his possession or subsequently obtained by him.

(5) The designated person shall not grant an authorisation under subsection (3) [F86 or (3B)], or give a notice under subsection (4), unless he believes that obtaining the data in question by the conduct authorised or required by the authorisation or notice is proportionate to what is sought to be achieved by so obtaining the data.

[F87 (5A) An authorisation under subsection (3) or (3B), or a requirement imposed in accordance with a notice under subsection (4), may relate to conduct outside the United Kingdom (and any such notice may be given to a person outside the United Kingdom).

(5B) Where a notice under subsection (4) is to be given to a person outside the United Kingdom, the notice may (in addition to electronic or other means of giving a notice) be given to the person in any of the following ways—

(a) by delivering it to the person's principal office within the United Kingdom or, if the person has no such office in the United Kingdom, to any place in the United Kingdom where the person carries on business or conducts activities;

(b) if the person has specified an address in the United Kingdom as one at which the person, or someone on the person's behalf, will accept documents of the same description as a notice, by delivering it to that address;

(c) by notifying the person of the requirements imposed by the notice by such other means as the person giving the notice thinks appropriate (which may include notifying the person orally, except where the notice is one to which section 23A applies).]

(6) It shall [F88 , subject to section 23A,] be the duty of the postal or telecommunications operator [F89 (whether or not the operator is in the United Kingdom)] to comply with the requirements of any notice given to him under subsection (4).

(7) A person who is under a duty by virtue of subsection (6) shall not be required to do anything in pursuance of that duty which it is not reasonably practicable for him to do.

(8) The duty imposed by subsection (6) shall be enforceable [F90 (including in the case of a person outside the United Kingdom)] by civil proceedings by the Secretary of State for an injunction, or for specific performance of a statutory duty under section 45 of the M26 Court of Session Act 1988, or for any other appropriate relief.

(9) The Secretary of State shall not make an order under subsection (2)(h) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

Textual Amendments

F82 Words in s. 22(2)(c) inserted (temp.) (17.7.2014) by Data Retention and Investigatory Powers Act 2014 (c. 27), ss. 3(3)(4), 8(1)(3)

F83 S. 22(3A)-(3I) inserted (25.1.2010) by Policing and Crime Act 2009 (c. 26), ss. {7(2)}, 116; S.I. 2009/3096, art. 3(b)

F84 S. 22(3E)-(3H) omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(5)(a)

F85 Words in s. 22(3I) substituted (1.4.2013) by The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(5)(b)

F86 Words in s. 22(5) substituted (1.4.2013) by The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(5)(c)

F87 S. 22(5A)(5B) inserted (temp.) (17.7.2014) by Data Retention and Investigatory Powers Act 2014 (c. 27), ss. 4(8), 8(1)(3)

F88 Words in s. 22(6) inserted (1.11.2012) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 9 para. 7 (with s. 97); S.I. 2012/2075, art. 4(d)

F89 Words in s. 22(6) inserted (temp.) (17.7.2014) by Data Retention and Investigatory Powers Act 2014 (c. 27), ss. 4(9), 8(1)(3)

F90 Words in s. 22(8) inserted (temp.) (17.7.2014) by Data Retention and Investigatory Powers Act 2014 (c. 27), ss. 4(10), 8(1)(3)

Modifications etc. (not altering text)

C41 S. 22(2)(c) continued (temp.) (30.12.2016) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 9 para. 9 (with Sch. 9 paras. 7, 8, 10); S.I. 2016/1233, reg. 2(p)

C42 S. 22(5A)(5B) continued (temp.) (30.12.2016) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 9 para. 9 (with Sch. 9 paras. 7, 8, 10); S.I. 2016/1233, reg. 2(p)

C43 S. 22(6) continued (temp.) (30.12.2016) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 9 para. 9 (with Sch. 9 paras. 7, 8, 10); S.I. 2016/1233, reg. 2(p)

C44 S. 22(8) continued (temp.) (30.12.2016) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 9 para. 9 (with Sch. 9 paras. 7, 8, 10); S.I. 2016/1233, reg. 2(p)

Marginal Citations

M26 1988 c. 36.

23 Form and duration of authorisations and notices. U.K.

(1) An authorisation under section 22(3) [F91 or (3B)] —

(a) must be granted in writing or (if not in writing) in a manner that produces a record of its having been granted;

(b) must describe the conduct to which this Chapter applies that is authorised and the communications data in relation to which it is authorised;

(c) must specify the matters falling within section 22(2) by reference to which it is granted; and

(d) must specify the office, rank or position held by the person granting the authorisation.

(2) A notice under section 22(4) requiring communications data to be disclosed or to be obtained and disclosed—

(a) must be given in writing or (if not in writing) must be given in a manner that produces a record of its having been given;

(b) must describe the communications data to be obtained or disclosed under the notice;

(c) must specify the matters falling within section 22(2) by reference to which the notice is given;

(d) must specify the office, rank or position held by the person giving it; and

(e) must specify the manner in which any disclosure required by the notice is to be made.

[F92 (2A) The words in paragraph (a) of subsections (1) and (2) from “or” to the end of the paragraph do not apply in relation to—

(a) an authorisation under section 22(3) [F93 or (3B)] to which section 23A applies, or

(b) a notice under section 22(4) to which section 23A applies.]

(3) A notice under section 22(4) shall not require the disclosure of data to any person other than—

(a) the person giving the notice; or

(b) such other person as may be specified in or otherwise identified by, or in accordance with, the provisions of the notice;

but the provisions of the notice shall not specify or otherwise identify a person for the purposes of paragraph (b) unless he holds an office, rank or position with the same relevant public authority as the person giving the notice [F94 (subject to [F95 subsection (3A)])].

[F96 (3A) The provisions of a notice under section 22(4) may specify or otherwise identify a person for the purposes of subsection (3)(b) above if—

(a) the person giving the notice holds an office, rank or position with a police force (“notifying force”);

(b) the chief officer of police of the notifying force has made an agreement under section 23(1) of the Police Act 1996 with the chief officer of police of one or more other police forces; and

(c) the person specified in or otherwise identified in the notice holds an office, rank or position with a collaborative force.

(3B) For the purposes of subsection (3A) a police force is a collaborative force if—

(a) its chief officer of police is a party to the agreement mentioned in subsection (3A)(b); and

(b) the persons holding offices, ranks or positions with it are permitted by the terms of the agreement to be specified or otherwise identified in notices under section 22(4) given by a person holding an office, rank or position with the notifying force.

(3C) A reference in subsections (3A) and (3B) to a police force is to the following—

(a) any police force maintained under section 2 of the Police Act 1996 (police forces in England and Wales outside London);

(b) the metropolitan police force; and

(c) the City of London police force.

F97 (3D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F97 (3E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F97 (3F) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(4) An authorisation under section 22(3) [F98 or (3B)] or notice under section 22(4)—

(a) shall not authorise or require any data to be obtained after the end of the period of one month beginning with the date on which the authorisation is granted or the notice given; and

(b) in the case of a notice, shall not authorise or require any disclosure after the end of that period of any data not in the possession of, or obtained by, the postal or telecommunications operator at a time during that period.

(5) An authorisation under section 22(3) [F99 or (3B)] or notice under section 22(4) may be renewed at any time before the end of the period of one month applying (in accordance with subsection (4) or subsection (7)) to that authorisation or notice.

(6) A renewal of an authorisation under section 22(3) [F100 or (3B)] or of a notice under section 22(4) shall be by the grant or giving, in accordance with this section, of a further authorisation or notice.

(7) Subsection (4) shall have effect in relation to a renewed authorisation or renewal notice as if the period of one month mentioned in that subsection did not begin until the end of the period of one month applicable to the authorisation or notice that is current at the time of the renewal.

(8) Where a person who has given a notice under subsection (4) of section 22 is satisfied—

(a) that it is no longer necessary on grounds falling within subsection (2) of that section for the requirements of the notice to be complied with, or

(b) that the conduct required by the notice is no longer proportionate to what is sought to be achieved by obtaining communications data to which the notice relates,

he shall cancel the notice.

(9) The Secretary of State may by regulations provide for the person by whom any duty imposed by subsection (8) is to be performed in a case in which it would otherwise fall on a person who is no longer available to perform it; and regulations under this subsection may provide for the person on whom the duty is to fall to be a person appointed in accordance with the regulations.

Textual Amendments

F91 Words in s. 23(1) substituted (1.4.2013) by The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(6)(a)

F92 S. 23(2A) inserted (1.11.2012) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 9 para. 8 (with s. 97); S.I. 2012/2075, art. 4(d)

F93 Words in s. 23(2A) substituted (1.4.2013) by The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(6)(b)

F94 Words in s. 23(3) inserted (25.1.2010) by Policing and Crime Act 2009 (c. 26), ss. 7(3) 116; S.I. 2009/3096, art. 3(b)

F95 Words in s. 23(3) substituted (1.4.2013) by The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(6)(c)

F96 S. 23(3A)-(3F) inserted (25.1.2010) by Policing and Crime Act 2009 (c. 26), ss. 7(4), 116; S.I. 2009/3096, art. 3(b)

F97 S. 23(3D)-(3F) omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(6)(d)

F98 Words in s. 23(4) substituted (1.4.2013) by The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(6)(e)

F99 Words in s. 23(5) substituted (1.4.2013) by The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(6)(e)

F100 Words in s. 23(6) substituted (1.4.2013) by The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(6)(e)

[F101 23A Authorisations requiring judicial approval U.K.

(1) This section applies where a relevant person has—

(a) granted or renewed an authorisation under section 22(3) [F102 or (3B)], or

(b) given or renewed a notice under section 22(4).

(2) The authorisation or notice is not to take effect until such time (if any) as the relevant judicial authority has made an order approving the grant or renewal of the authorisation or (as the case may be) the giving or renewal of the notice.

(3) The relevant judicial authority may give approval under this section to the granting or renewal of an authorisation under section 22(3) [F103 or (3B)] if, and only if, the relevant judicial authority is satisfied that—

(a) at the time of the grant or renewal—

(i) there were reasonable grounds for believing that the requirements of section 22(1) and (5) were satisfied in relation to the authorisation, and

(ii) the relevant conditions were satisfied in relation to the authorisation, and

(b) at the time when the relevant judicial authority is considering the matter, there remain reasonable grounds for believing that the requirements of section 22(1) and (5) are satisfied in relation to the authorisation.

(4) The relevant judicial authority may give approval under this section to the giving or renewal of a notice under section 22(4) if, and only if, the relevant judicial authority is satisfied that—

(a) at the time of the giving or renewal of the notice—

(i) there were reasonable grounds for believing that the requirements of section 22(1) and (5) were satisfied in relation to the notice, and

(ii) the relevant conditions were satisfied in relation to the notice, and

(b) at the time when the relevant judicial authority is considering the matter, there remain reasonable grounds for believing that the requirements of section 22(1) and (5) are satisfied in relation to the notice.

(5) For the purposes of subsections (3) and (4) the relevant conditions are—

(a) in relation to any grant, giving or renewal by an individual holding an office, rank or position in a local authority in England, Wales or Scotland, that—

(i) the individual was a designated person for the purposes of this Chapter,

(ii) the grant, giving or renewal was not in breach of any restrictions imposed by virtue of section 25(3), and

(iii) any other conditions that may be provided for by an order made by the Secretary of State were satisfied,

(b) in relation to a grant, giving or renewal, for any purpose relating to a Northern Ireland excepted or reserved matter, by an individual holding an office, rank or position in a district council in Northern Ireland, that—

(i) the individual was a designated person for the purposes of this Chapter,

(ii) the grant, giving or renewal was not in breach of any restrictions imposed by virtue of section 25(3), and

(iii) any other conditions that may be provided for by an order made by the Secretary of State were satisfied, and

(c) in relation to any other grant, giving or renewal by a relevant person, that any conditions that may be provided for by an order made by the Secretary of State were satisfied.

(6) In this section—

• “local authority in England” means—

  (a)

  a district or county council in England,

  (b)

  a London borough council,

  (c)

  the Common Council of the City of London in its capacity as a local authority, or

  (d)

  the Council of the Isles of Scilly,

• “local authority in Scotland” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994,

• “local authority in Wales” means any county council or county borough council in Wales,

• “Northern Ireland excepted or reserved matter” means an excepted or reserved matter (within the meaning of section 4(1) of the Northern Ireland Act 1998),

• “Northern Ireland transferred matter” means a transferred matter (within the meaning of section 4(1) of the Act of 1998),

• “relevant judicial authority” means—

  (a)

  in relation to England and Wales, a justice of the peace,

  (b)

  in relation to Scotland, a sheriff, and

  (c)

  in relation to Northern Ireland, a district judge (magistrates' courts) in Northern Ireland,

• “relevant person” means—

  (a)

  an individual holding—

  (i)

  an office, rank or position in a local authority in England or Wales, or

  (ii)

  an office, rank or position in a local authority in Scotland (other than an office, rank or position in a fire and rescue authority),

  (b)

  also, in relation to a grant, giving or renewal for any purpose relating to a Northern Ireland excepted or reserved matter, an individual holding an office, rank or position in a district council in Northern Ireland, and

  (c)

  also, in relation to any grant, giving or renewal of a description that may be prescribed for the purposes of this subsection by an order made by the Secretary of State or every grant, giving or renewal if so prescribed, a person of a description so prescribed.

(7) No order of the Secretary of State—

(a) may be made under subsection (6) unless a draft of the order has been laid before Parliament and approved by a resolution of each House;

(b) may be made under this section so far as it makes provision which, if it were contained in an Act of the Northern Ireland Assembly, would be within the legislative competence of the Northern Ireland Assembly and would deal with a Northern Ireland transferred matter.

Textual Amendments

F101 S. 23A - S. 23B inserted (1.11.2012) by Protection of Freedoms Act 2012 (c. 9), ss. 37, 120 (with s. 97); S.I. 2012/2075, art. 4(a) (with art. 6)

F102 Words in s. 23A(1)(a) substituted (1.4.2013) by The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(7)

F103 Words in s. 23A(3) substituted (1.4.2013) by The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(7)

23B Procedure for judicial approval U.K.

(1) The public authority with which the relevant person holds an office, rank or position may apply to the relevant judicial authority for an order under section 23A approving the grant or renewal of an authorisation or (as the case may be) the giving or renewal of a notice.

(2) The applicant is not required to give notice of the application to—

(a) any person to whom the authorisation or notice which is the subject of the application relates, or

(b) such a person's legal representatives.

(3) Where, on an application under this section, the relevant judicial authority refuses to approve the grant or renewal of the authorisation concerned or (as the case may be) the giving or renewal of the notice concerned, the relevant judicial authority may make an order quashing the authorisation or notice.

(4) In this section “ relevant judicial authority ” and “ relevant person ” have the same meaning as in section 23A. ]

Textual Amendments

F101 S. 23A - S. 23B inserted (1.11.2012) by Protection of Freedoms Act 2012 (c. 9), ss. 37, 120 (with s. 97); S.I. 2012/2075, art. 4(a) (with art. 6)

24 Arrangements for payments. U.K.

(1) It shall be the duty of the Secretary of State to ensure that such arrangements are in force as he thinks appropriate for requiring or authorising, in such cases as he thinks fit, the making to postal and telecommunications operators of appropriate contributions towards the costs incurred by them in complying with notices under section 22(4).

(2) For the purpose of complying with his duty under this section, the Secretary of State may make arrangements for payments to be made out of money provided by Parliament.

25 Interpretation of Chapter II. U.K.

(1) In this Chapter—

• “communications data” has the meaning given by section 21(4);

• “designated” shall be construed in accordance with subsection (2);

• “postal or telecommunications operator” means a person who provides a postal service or telecommunications service;

• “relevant public authority” means (subject to subsection (4)) any of the following—

  (a)

  a police force;

  (b)

  [F104 the National Crime Agency;]

  (ca)

  F105 ...

  (d)

  [F106 Her Majesty's Revenue and Customs;]

  (f)

  any of the intelligence services;

  (g)

  any such public authority not falling within paragraphs (a) to (f) as may be specified for the purposes of this subsection by an order made by the Secretary of State.

(2) Subject to subsection (3), the persons designated for the purposes of this Chapter are the individuals holding such offices, ranks or positions with relevant public authorities as are prescribed for the purposes of this subsection by an order made by the Secretary of State.

(3) The Secretary of State may by order impose restrictions—

(a) on the authorisations and notices under this Chapter that may be granted or given by any individual holding an office, rank or position with a specified public authority; and

(b) on the circumstances in which, or the purposes for which, such authorisations may be granted or notices given by any such individual.

[F107 (3A) References in this Chapter to an individual holding an office or position with the [F108 National Crime Agency include references to any National Crime Agency officer.]]

[F109 (4) The Secretary of State may by order—

(a) remove any person from the list of persons who are for the time being relevant public authorities for the purposes of this Chapter; and

(b) make such consequential amendments, repeals or revocations in this or any other enactment as appear to him to be necessary or expedient.

(5) The Secretary of State shall not make an order under this section—

(a) that adds any person to the list of persons who are for the time being relevant public authorities for the purposes of this Chapter, or

(b) that by virtue of subsection (4)(b) amends or repeals any provision of an Act,

unless a draft of the order has been laid before Parliament and approved by a resolution of each House.]

Textual Amendments

F104 Words in s. 25(1) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 81(2); S.I. 2013/1682, art. 3(v)

F105 Words in s. 25(1) omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(8)

F106 S. 25(1): para. (d) in the definition of "relevant public authority" substituted (15.2.2008) for paras. (d)(e) by Serious Crime Act 2007 (c. 27), ss. 88, 94 {Sch. 12 para. 8}; S.I. 2008/219, art. 2(b)

F107 S. 25(3A) inserted (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 178, Sch. 4 para. 135(3); S.I. 2006/378, art. 4(1), Sch. para. 10 (subject to art. 4(2)-(7))

F108 Words in s. 25(3A) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 81(3); S.I. 2013/1682, art. 3(v)

F109 S. 25(4)(5) substituted (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 178, Sch. 4 para. 135(4); S.I. 2006/378, art. 4(1), Sch. para. 10 (subject to art. 4(2)-(7))

Part II U.K. Surveillance and covert human intelligence sources

Modifications etc. (not altering text)

C45 Pt. II (ss. 26-48) applied (with modifications)(16.3.2001) by S.I. 2001/1057, arts. 2, 3

Pt. II (ss. 26-48): power to apply (with modifications) conferred (1.10.2002) by 2002 c. 30, s. 19(2)(a); S.I. 2002/2306, art. 2(b)(v)

C46 Pt. 2 modified (1.4.2004) by The Independent Police Complaints Commission (Investigatory Powers) Order 2004 (S.I. 2004/815), art. 3 (as amended (E.W.) (8.1.2018) by The Independent Office for Police Conduct (Transitional and Consequential) Regulations 2017 (S.I. 2017/1250), regs. 1, 10(6) (with reg. 37))

Introductory U.K.

26 Conduct to which Part II applies. U.K.

(1) This Part applies to the following conduct—

(a) directed surveillance;

(b) intrusive surveillance; and

(c) the conduct and use of covert human intelligence sources.

(2) Subject to subsection (6), surveillance is directed for the purposes of this Part if it is covert but not intrusive and is undertaken—

(a) for the purposes of a specific investigation or a specific operation;

(b) in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation); and

(c) otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under this Part to be sought for the carrying out of the surveillance.

(3) Subject to subsections (4) to (6), surveillance is intrusive for the purposes of this Part if, and only if, it is covert surveillance that—

(a) is carried out in relation to anything taking place on any residential premises or in any private vehicle; and

(b) involves the presence of an individual on the premises or in the vehicle or is carried out by means of a surveillance device.

(4) For the purposes of this Part surveillance is not intrusive to the extent that—

(a) it is carried out by means only of a surveillance device designed or adapted principally for the purpose of providing information about the location of a vehicle; or

(b) it is surveillance consisting in any such interception of a communication as falls within section 48(4).

(5) For the purposes of this Part surveillance which—

(a) is carried out by means of a surveillance device in relation to anything taking place on any residential premises or in any private vehicle, but

(b) is carried out without that device being present on the premises or in the vehicle,

is not intrusive unless the device is such that it consistently provides information of the same quality and detail as might be expected to be obtained from a device actually present on the premises or in the vehicle.

(6) For the purposes of this Part surveillance which—

(a) is carried out by means of apparatus designed or adapted for the purpose of detecting the installation or use in any residential or other premises of a television receiver (within the meaning of [F110 Part 4 of the Communications Act 2003)] , and

(b) is carried out from outside those premises exclusively for that purpose,

is neither directed nor intrusive.

(7) In this Part—

(a) references to the conduct of a covert human intelligence source are references to any conduct of such a source which falls within any of paragraphs (a) to (c) of subsection (8), or is incidental to anything falling within any of those paragraphs; and

(b) references to the use of a covert human intelligence source are references to inducing, asking or assisting a person to engage in the conduct of such a source, or to obtain information by means of the conduct of such a source.

(8) For the purposes of this Part a person is a covert human intelligence source if—

(a) he establishes or maintains a personal or other relationship with a person for the covert purpose of facilitating the doing of anything falling within paragraph (b) or (c);

(b) he covertly uses such a relationship to obtain information or to provide access to any information to another person; or

(c) he covertly discloses information obtained by the use of such a relationship, or as a consequence of the existence of such a relationship.

(9) For the purposes of this section—

(a) surveillance is covert if, and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place;

(b) a purpose is covert, in relation to the establishment or maintenance of a personal or other relationship, if and only if the relationship is conducted in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the purpose; and

(c) a relationship is used covertly, and information obtained as mentioned in subsection (8)(c) is disclosed covertly, if and only if it is used or, as the case may be, disclosed in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the use or disclosure in question.

(10) In this section “private information”, in relation to a person, includes any information relating to his private or family life.

(11) References in this section, in relation to a vehicle, to the presence of a surveillance device in the vehicle include references to its being located on or under the vehicle and also include references to its being attached to it.

Textual Amendments

F110 Words in s. 26(6)(a) substituted (1.4.2004) by Communications Act 2003 (c. 21), ss. 406, 411(2)(3), Sch. 17 para. 161(2) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 4(2), Sch. 2

Authorisation of surveillance and human intelligence sources U.K.

27 Lawful surveillance etc. U.K.

(1) Conduct to which this Part applies shall be lawful for all purposes if—

(a) an authorisation under this Part confers an entitlement to engage in that conduct on the person whose conduct it is; and

(b) his conduct is in accordance with the authorisation.

(2) A person shall not be subject to any civil liability in respect of any conduct of his which—

(a) is incidental to any conduct that is lawful by virtue of subsection (1); and

(b) is not itself conduct an authorisation or warrant for which is capable of being granted under a relevant enactment and might reasonably have been expected to have been sought in the case in question.

(3) The conduct that may be authorised under this Part includes conduct outside the United Kingdom.

(4) In this section “relevant enactment” means—

(a) an enactment contained in this Act [F111 or the Investigatory Powers Act 2016];

(b) section 5 of the M27 Intelligence Services Act 1994 (warrants for the intelligence services); or

(c) an enactment contained in Part III of the M28 Police Act 1997 (powers of the police and of [F112 officers of Revenue and Customs).]

Textual Amendments

F111 Words in s. 27(4)(a) inserted (27.6.2018) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 4 (with Sch. 9 paras. 7, 8, 10); S.I. 2018/652, reg. 12(g)(i)

F112 Words in s. 27(4)(c) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 9; S.I. 2008/219, art. 2(b)

Marginal Citations

M27 1994 c. 13.

M28 1997 c. 50.

28 Authorisation of directed surveillance. U.K.

(1) Subject to the following provisions of this Part, the persons designated for the purposes of this section shall each have power to grant authorisations for the carrying out of directed surveillance.

(2) A person shall not grant an authorisation for the carrying out of directed surveillance unless he believes—

(a) that the authorisation is necessary on grounds falling within subsection (3); and

(b) that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out.

(3) An authorisation is necessary on grounds falling within this subsection if it is necessary—

(a) in the interests of national security;

(b) for the purpose of preventing or detecting crime or of preventing disorder;

(c) in the interests of the economic well-being of the United Kingdom;

(d) in the interests of public safety;

(e) for the purpose of protecting public health;

(f) for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or

(g) for any purpose (not falling within paragraphs (a) to (f)) which is specified for the purposes of this subsection by an order made by the Secretary of State.

(4) The conduct that is authorised by an authorisation for the carrying out of directed surveillance is any conduct that—

(a) consists in the carrying out of directed surveillance of any such description as is specified in the authorisation; and

(b) is carried out in the circumstances described in the authorisation and for the purposes of the investigation or operation specified or described in the authorisation.

(5) The Secretary of State shall not make an order under subsection (3)(g) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

29 Authorisation of covert human intelligence sources. U.K.

(1) Subject to the following provisions of this Part, the persons designated for the purposes of this section shall each have power to grant authorisations for the conduct or the use of a covert human intelligence source.

(2) A person shall not grant an authorisation for the conduct or the use of a covert human intelligence source unless he believes—

(a) that the authorisation is necessary on grounds falling within subsection (3);

(b) that the authorised conduct or use is proportionate to what is sought to be achieved by that conduct or use; and

[F113 (c) that arrangements exist for the source's case that satisfy—

(i) the requirements of subsection (4A), in the case of a source of a relevant collaborative unit;

F114 (ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iii) the requirements of subsection (5), in the case of any other source;

and that satisfy such other requirements as may be imposed by order made by the Secretary of State.]

[F115 (2A) For the meaning of “relevant collaborative unit” in subsection (2)(c)(i), see section 29A.]

(3) An authorisation is necessary on grounds falling within this subsection if it is necessary—

(a) in the interests of national security;

(b) for the purpose of preventing or detecting crime or of preventing disorder;

(c) in the interests of the economic well-being of the United Kingdom;

(d) in the interests of public safety;

(e) for the purpose of protecting public health;

(f) for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or

(g) for any purpose (not falling within paragraphs (a) to (f)) which is specified for the purposes of this subsection by an order made by the Secretary of State.

(4) The conduct that is authorised by an authorisation for the conduct or the use of a covert human intelligence source is any conduct that—

(a) is comprised in any such activities involving conduct of a covert human intelligence source, or the use of a covert human intelligence source, as are specified or described in the authorisation;

(b) consists in conduct by or in relation to the person who is so specified or described as the person to whose actions as a covert human intelligence source the authorisation relates; and

(c) is carried out for the purposes of, or in connection with, the investigation or operation so specified or described.

[F116 (4A) For the purposes of this Part there are arrangements for the source's case that satisfy the requirements of this subsection if such arrangements are in force as are necessary for ensuring—

(a) that there will at all times be a qualifying person who will have day-to-day responsibility for dealing with the source, and for the source's security and welfare [F117 (see section 29A for the meaning of “qualifying person”) ] ;

(b) that there will at all times be another qualifying person who will have general oversight of the use made of the source;

(c) that there will at all times be a qualifying person who will have responsibility for maintaining a record of the use made of the source;

(d) that the records relating to the source that are maintained by virtue of paragraph (c) will always contain particulars of all such matters (if any) as may be specified for the purposes of this paragraph in regulations made by the Secretary of State; and

(e) that records maintained by virtue of paragraph (c) that disclose the identity of the source will not be available to persons except to the extent that there is a need for access to them to be made available to those persons.

F118 (4B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(5) For the purposes of this Part there are arrangements for the source’s case that satisfy the requirements of this subsection if such arrangements are in force as are necessary for ensuring—

(a) that there will at all times be a person holding an office, rank or position with the relevant investigating authority who will have day-to-day responsibility for dealing with the source on behalf of that authority, and for the source’s security and welfare;

(b) that there will at all times be another person holding an office, rank or position with the relevant investigating authority who will have general oversight of the use made of the source;

(c) that there will at all times be a person holding an office, rank or position with the relevant investigating authority who will have responsibility for maintaining a record of the use made of the source;

(d) that the records relating to the source that are maintained by the relevant investigating authority will always contain particulars of all such matters (if any) as may be specified for the purposes of this paragraph in regulations made by the Secretary of State; and

(e) that records maintained by the relevant investigating authority that disclose the identity of the source will not be available to persons except to the extent that there is a need for access to them to be made available to those persons.

(6) The Secretary of State shall not make an order under subsection (3)(g) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

[F119 (6A) An authorisation under this section may not have the effect of authorising a covert human intelligence source who is a person designated under section 38 of the Police Reform Act 2002 to establish contact in person with another person.]

(7) The Secretary of State may by order—

(a) prohibit the authorisation under this section of any such conduct or uses of covert human intelligence sources as may be described in the order; and

(b) impose requirements, in addition to those provided for by subsection (2), that must be satisfied before an authorisation is granted under this section for any such conduct or uses of covert human intelligence sources as may be so described.

F120 [F121 (7A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F122 (7B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(8) In this section “relevant investigating authority”, in relation to an authorisation for the conduct or the use of an individual as a covert human intelligence source, means (subject to subsection (9)) the public authority for whose benefit the activities of that individual as such a source are to take place.

(9) In the case of any authorisation for the conduct or the use of a covert human intelligence source whose activities are to be for the benefit of more than one public authority, the references in subsection (5) to the relevant investigating authority are references to one of them (whether or not the same one in the case of each reference).

F123 (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F113 S. 29(2)(c) substituted (25.1.2010) by Policing and Crime Act 2009 (c. 26), ss. 8(2), 116; S.I. 2009/3096, art. 3(c)

F114 S. 29(2)(c)(ii) omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(9)(a)

F115 S. 29(2A) substituted (31.1.2017 for specified purposes, 31.3.2017 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), s. 183(5)(e)(6)(b), Sch. 19 para. 3(2)

F116 S. 29(4A)(4B) inserted (25.1.2010) by Policing and Crime Act 2009 (c. 26), ss. 8(4), 116; S.I. 2009/3096, art. 3(c)

F117 Words in s. 29(4A)(a) inserted (31.1.2017 for specified purposes, 31.3.2017 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), s. 183(5)(e)(6)(b), Sch. 19 para. 3(3)

F118 S. 29(4B) omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(9)(c)

F119 S. 29(6A) inserted (31.1.2017 for specified purposes, 15.12.2017 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), ss. 44, 183(1)(5)(e); S.I. 2017/1139, reg. 2(j) (as amended by S.I. 2017/1162, reg. 2)

F120 S. 29(7A) omitted (31.1.2017 for specified purposes, 31.3.2017 in so far as not already in force) by virtue of Policing and Crime Act 2017 (c. 3), s. 183(5)(e)(6)(b), Sch. 19 para. 3(4)

F121 S. 29(7A)(7B) inserted (25.1.2010) by Policing and Crime Act 2009 (c. 26), ss. 8(5), 116; S.I. 2009/3096, art. 3(c)

F122 S. 29(7B) omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(9)(c)

F123 S. 29(10) omitted (31.1.2017 for specified purposes, 31.3.2017 in so far as not already in force) by virtue of Policing and Crime Act 2017 (c. 3), s. 183(5)(e)(6)(b), Sch. 19 para. 3(5)

Modifications etc. (not altering text)

C47 S. 29(2)(c) modified (6.11.2000) by S.I. 2000/2793, art. 4

[F124 29A Section 29: supplementary provision in relation to relevant collaborative units U.K.

(1) For the purposes of section 29(2)(c)(i), a “relevant collaborative unit” is a unit that falls within subsection (2) or (3).

(2) A unit falls within this subsection if—

(a) it consists of two or more police forces whose chief officers of police have made an agreement under section 22A of the Police Act 1996, and

(b) the agreement relates to the discharge by persons holding offices, ranks or positions with any of the forces of functions in connection with the conduct or use of the covert human intelligence source concerned.

(3) A unit falls within this subsection if—

(a) it consists of one or more police forces and the National Crime Agency,

(b) it is in place by virtue of an agreement made under section 22A of the Police Act 1996, and

(c) the agreement relates to the discharge by persons holding offices, ranks or positions within any such force, or by persons who are National Crime Agency officers, of functions in connection with the conduct or use of the covert human intelligence source concerned.

(4) In the case of a relevant collaborative unit that falls within subsection (2), a person is a “qualifying person” for the purposes of section 29(4A) if—

(a) the person holds an office, rank or position with a police force whose chief officer of police is a party to the agreement mentioned in subsection (2)(a) above, and

(b) the person is permitted by the terms of the agreement to have the responsibility mentioned in section 29(4A)(a) or (c) or the general oversight mentioned in section 29(4A)(b).

(5) In the case of a relevant collaborative unit that falls within subsection (3), a person is a qualifying person for the purposes of section 29(4A) if—

(a) the person—

(i) is a National Crime Agency officer, or

(ii) holds an office, rank or position with a police force whose chief officer of police is a party to the agreement mentioned in subsection (3)(b) above, and

(b) the person is permitted by the terms of the agreement to have the responsibility mentioned in section 29(4A)(a) or (c) or the general oversight mentioned in section 29(4A)(b).

(6) For the purposes of this section references to a police force are to the following—

(a) any police force maintained under section 2 of the Police Act 1996 (police forces in England and Wales outside London),

(b) the metropolitan police force, and

(c) the City of London police force.]

Textual Amendments

F124 S. 29A inserted (31.1.2017 for specified purposes, 31.3.2017 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), s. 183(5)(e)(6)(b), Sch. 19 para. 4

30 Persons entitled to grant authorisations under ss. 28 and 29. U.K.

(1) Subject to subsection (3), the persons designated for the purposes of sections 28 and 29 are the individuals holding such offices, ranks or positions with relevant public authorities as are prescribed for the purposes of this subsection by an order under this section.

(2) For the purposes of the grant of an authorisation that combines—

(a) an authorisation under section 28 or 29, and

(b) an authorisation by the Secretary of State for the carrying out of intrusive surveillance,

the Secretary of State himself shall be a person designated for the purposes of that section.

(3) An order under this section may impose restrictions—

(a) on the authorisations under sections 28 and 29 that may be granted by any individual holding an office, rank or position with a specified public authority; and

(b) on the circumstances in which, or the purposes for which, such authorisations may be granted by any such individual.

(4) A public authority is a relevant public authority for the purposes of this section—

(a) in relation to section 28 if it is specified in Part I or II of Schedule 1; and

(b) in relation to section 29 if it is specified in Part I of that Schedule.

(5) An order under this section may amend Schedule 1 by—

(a) adding a public authority to Part I or II of that Schedule;

(b) removing a public authority from that Schedule;

(c) moving a public authority from one Part of that Schedule to the other;

(d) making any change consequential on any change in the name of a public authority specified in that Schedule.

(6) Without prejudice to section 31, the power to make an order under this section shall be exercisable by the Secretary of State.

(7) The Secretary of State shall not make an order under subsection (5) containing any provision for—

(a) adding any public authority to Part I or II of that Schedule, or

(b) moving any public authority from Part II to Part I of that Schedule,

unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

31 Orders under s. 30 for Northern Ireland. U.K.

(1) Subject to subsections (2) and (3), the power to make an order under section 30 for the purposes of the grant of authorisations for conduct in Northern Ireland shall be exercisable by the Office of the First Minister and deputy First Minister in Northern Ireland (concurrently with being exercisable by the Secretary of State).

(2) The power of the Office of the First Minister and deputy First Minister to make an order under section 30 by virtue of subsection (1) or (3) of that section shall not be exercisable in relation to any public authority other than—

(a) the Food Standards Agency;

F125 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) an authority added to Schedule 1 by an order made by that Office;

(d) an authority added to that Schedule by an order made by the Secretary of State which it would (apart from that order) have been within the powers of that Office to add to that Schedule for the purposes mentioned in subsection (1) of this section.

(3) The power of the Office of the First Minister and deputy First Minister to make an order under section 30—

(a) shall not include power to make any provision dealing with an excepted matter;

(b) shall not include power, except with the consent of the Secretary of State, to make any provision dealing with a reserved matter.

(4) The power of the Office of the First Minister and deputy First Minister to make an order under section 30 shall be exercisable by statutory rule for the purposes of the M29 Statutory Rules (Northern Ireland) Order 1979.

(5) A statutory rule containing an order under section 30 which makes provision by virtue of subsection (5) of that section for—

(a) adding any public authority to Part I or II of Schedule 1, or

(b) moving any public authority from Part II to Part I of that Schedule,

shall be subject to affirmative resolution (within the meaning of section 41(4) of the M30 Interpretation Act (Northern Ireland) 1954).

(6) A statutory rule containing an order under section 30 (other than one to which subsection (5) of this section applies) shall be subject to negative resolution (within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954).

(7) An order under section 30 made by the Office of the First Minister and deputy First Minister may—

(a) make different provision for different cases;

(b) contain such incidental, supplemental, consequential and transitional provision as that Office thinks fit.

(8) The reference in subsection (2) to an addition to Schedule 1 being within the powers of the Office of the First Minister and deputy First Minister includes a reference to its being within the powers exercisable by that Office with the consent for the purposes of subsection (3)(b) of the Secretary of State.

(9) In this section “excepted matter” and “reserved matter” have the same meanings as in the M31 Northern Ireland Act 1998; and, in relation to those matters, section 98(2) of that Act (meaning of “deals with”) applies for the purposes of this section as it applies for the purposes of that Act.

Textual Amendments

F125 S. 31(2)(b) repealed (15.11.2001) by S.I. 2001/3686, art. 6(17)(a) (with art. 8)

Marginal Citations

M29 S.I. 1979/1573 (N.I. 12).

M30 1954 c. 33 (N.I.).

M31 1998 c. 47.

32 Authorisation of intrusive surveillance. U.K.

(1) Subject to the following provisions of this Part, the Secretary of State and each of the senior authorising officers shall have power to grant authorisations for the carrying out of intrusive surveillance.

(2) Neither the Secretary of State nor any senior authorising officer shall grant an authorisation for the carrying out of intrusive surveillance unless he believes—

(a) that the authorisation is necessary on grounds falling within subsection (3); and

(b) that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out.

(3) Subject to the following provisions of this section, an authorisation is necessary on grounds falling within this subsection if it is necessary—

(a) in the interests of national security;

(b) for the purpose of preventing or detecting serious crime; or

(c) in the interests of the economic well-being of the United Kingdom.

[F126 (3A) In the case of an authorisation granted by the [F127 chair of the CMA], the authorisation is necessary on grounds falling within subsection (3) only if it is necessary for the purpose of preventing or detecting an offence under section 188 of the Enterprise Act 2002 (cartel offence).]

(4) The matters to be taken into account in considering whether the requirements of subsection (2) are satisfied in the case of any authorisation shall include whether the information which it is thought necessary to obtain by the authorised conduct could reasonably be obtained by other means.

(5) The conduct that is authorised by an authorisation for the carrying out of intrusive surveillance is any conduct that—

(a) consists in the carrying out of intrusive surveillance of any such description as is specified in the authorisation;

(b) is carried out in relation to the residential premises specified or described in the authorisation or in relation to the private vehicle so specified or described; and

(c) is carried out for the purposes of, or in connection with, the investigation or operation so specified or described.

(6) For the purposes of this section the senior authorising officers are—

(a) the chief constable of every police force maintained under section 2 of the M32 Police Act 1996 (police forces in England and Wales outside London);

(b) the Commissioner of Police of the Metropolis and every Assistant Commissioner of Police of the Metropolis;

(c) the Commissioner of Police for the City of London;

(d) the chief constable of [F128 the Police Service of Scotland];

(e) the Chief Constable of the Royal Ulster Constabulary and the Deputy Chief Constable of the Royal Ulster Constabulary;

(f) the Chief Constable of the Ministry of Defence Police;

(g) the Provost Marshal of the [F129 Royal Navy Police];

(h) the Provost Marshal of the Royal Military Police;

(i) the Provost Marshal of the Royal Air Force Police;

(j) the Chief Constable of the British Transport Police;

[F130 (k) the Director General of the National Crime Agency and any National Crime Agency officer who is designated for the purposes of this paragraph by that Director General;]

[F131 (m) an officer of Revenue and Customs who is a senior official and who is designated for the purposes of this paragraph by the Commissioners for Her Majesty's Revenue F132 ... Customs;]

[F133 (ma) a senior official in the department of the Secretary of State by whom functions relating to immigration are exercisable who is designated for the purposes of this paragraph by the Secretary of State; and]

(n) the [F134 chair of the CMA].

Textual Amendments

F126 S. 32(3A) inserted (20.6.2003) by 2002 c. 40, ss. 199(2)(a), 27; S.I. 2003/1397, art. 2(1), Sch.

F127 Words in s. 32(3A) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 134 (with art. 3)

F128 Words in s. 32(6)(d) substituted (1.4.2013) by The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(10)

F129 Words in s. 32(6)(g) substituted (4.6.2007) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 170; S.I. 2007/1442, art. 2(1)

F130 S. 32(6)(k) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 82; S.I. 2013/1682, art. 3(v)

F131 S. 32(6)(m) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 10; S.I. 2008/219, art. 2(b)

F132 Word in s. 32(6)(m) omitted (25.6.2013) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 21 para. 6 (with Sch. 20 para. 29); S.I. 2013/1042, art. 4(i)

F133 S. 32(6)(ma) inserted (25.6.2013) by Crime and Courts Act 2013 (c. 22), ss. 55(2), 61(2) (with Sch. 21 para. 40); S.I. 2013/1042, art. 4(d)

F134 Words in s. 32(6)(n) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 134 (with art. 3)

Modifications etc. (not altering text)

C48 S. 32 modified (S.) (14.12.2000) by S.I. 2000/3253, arts. 1(1)(2), 2, Sch. 1 para. 4(1) (with art. 6)

C49 S. 32: functions transferred to the Scottish Ministers (15.12.2000) by virtue of S.I. 2000/3253 arts. 1(1)(3), 3, Sch. 2 (with art. 6)

Marginal Citations

M32 1996 c. 16.

[F135 Authorisations requiring judicial approval U.K.

Textual Amendments

F135 Ss. 32A, 32B and cross-heading inserted (1.11.2012) by Protection of Freedoms Act 2012 (c. 9), ss. 38(1), 120 (with s. 97); S.I. 2012/2075, art. 4(b) (with art. 6)

32A Authorisations requiring judicial approval U.K.

(1) This section applies where a relevant person has granted an authorisation under section 28 or 29.

(2) The authorisation is not to take effect until such time (if any) as the relevant judicial authority has made an order approving the grant of the authorisation.

(3) The relevant judicial authority may give approval under this section to the granting of an authorisation under section 28 if, and only if, the relevant judicial authority is satisfied that—

(a) at the time of the grant—

(i) there were reasonable grounds for believing that the requirements of section 28(2) were satisfied in relation to the authorisation, and

(ii) the relevant conditions were satisfied in relation to the authorisation, and

(b) at the time when the relevant judicial authority is considering the matter, there remain reasonable grounds for believing that the requirements of section 28(2) are satisfied in relation to the authorisation.

(4) For the purposes of subsection (3) the relevant conditions are—

(a) in relation to a grant by an individual holding an office, rank or position in a local authority in England or Wales, that—

(i) the individual was a designated person for the purposes of section 28,

(ii) the grant of the authorisation was not in breach of any restrictions imposed by virtue of section 30(3), and

(iii) any other conditions that may be provided for by an order made by the Secretary of State were satisfied,

(b) in relation to a grant, for any purpose relating to a Northern Ireland excepted or reserved matter, by an individual holding an office, rank or position in a district council in Northern Ireland, that—

(i) the individual was a designated person for the purposes of section 28,

(ii) the grant of the authorisation was not in breach of any restrictions imposed by virtue of section 30(3), and

(iii) any other conditions that may be provided for by an order made by the Secretary of State were satisfied, and

(c) in relation to any other grant by a relevant person, that any conditions that may be provided for by an order made by the Secretary of State were satisfied.

(5) The relevant judicial authority may give approval under this section to the granting of an authorisation under section 29 if, and only if, the relevant judicial authority is satisfied that—

(a) at the time of the grant—

(i) there were reasonable grounds for believing that the requirements of section 29(2), and any requirements imposed by virtue of section 29(7)(b), were satisfied in relation to the authorisation, and

(ii) the relevant conditions were satisfied in relation to the authorisation, and

(b) at the time when the relevant judicial authority is considering the matter, there remain reasonable grounds for believing that the requirements of section 29(2), and any requirements imposed by virtue of section 29(7)(b), are satisfied in relation to the authorisation.

(6) For the purposes of subsection (5) the relevant conditions are—

(a) in relation to a grant by an individual holding an office, rank or position in a local authority in England or Wales, that—

(i) the individual was a designated person for the purposes of section 29,

(ii) the grant of the authorisation was not in breach of any prohibition imposed by virtue of section 29(7)(a) or any restriction imposed by virtue of section 30(3), and

(iii) any other conditions that may be provided for by an order made by the Secretary of State were satisfied,

(b) in relation to a grant, for any purpose relating to a Northern Ireland excepted or reserved matter, by an individual holding an office, rank or position in a district council in Northern Ireland, that—

(i) the individual was a designated person for the purposes of section 29,

(ii) the grant of the authorisation was not in breach of any prohibition imposed by virtue of section 29(7)(a) or any restriction imposed by virtue of section 30(3), and

(iii) any other conditions that may be provided for by an order made by the Secretary of State were satisfied, and

(c) in relation to any other grant by a relevant person, that any conditions that may be provided for by an order made by the Secretary of State were satisfied.

(7) In this section—

• “ local authority in England ” means—

  (a)

  a district or county council in England,

  (b)

  a London borough council,

  (c)

  the Common Council of the City of London in its capacity as a local authority, or

  (d)

  the Council of the Isles of Scilly,

• “ local authority in Wales ” means any county council or county borough council in Wales,

• “ Northern Ireland excepted or reserved matter ” means an excepted or reserved matter (within the meaning of section 4(1) of the Northern Ireland Act 1998),

• “ Northern Ireland transferred matter ” means a transferred matter (within the meaning of section 4(1) of the Act of 1998),

• “ relevant judicial authority ” means—

  (a)

  in relation to England and Wales, a justice of the peace,

  (b)

  in relation to Scotland, a sheriff, and

  (c)

  in relation to Northern Ireland, a district judge (magistrates' courts) in Northern Ireland,

• “ relevant person ” means—

  (a)

  an individual holding an office, rank or position in a local authority in England or Wales,

  (b)

  also, in relation to a grant for any purpose relating to a Northern Ireland excepted or reserved matter, an individual holding an office, rank or position in a district council in Northern Ireland, and

  (c)

  also, in relation to any grant of a description that may be prescribed for the purposes of this subsection by an order made by the Secretary of State or every grant if so prescribed, a person of a description so prescribed.

(8) No order of the Secretary of State—

(a) may be made under subsection (7) unless a draft of the order has been laid before Parliament and approved by a resolution of each House;

(b) may be made under this section so far as it makes provision which would be within the legislative competence of the Scottish Parliament if it were contained in an Act of the Scottish Parliament;

(c) may be made under this section so far as it makes provision which, if it were contained in an Act of the Northern Ireland Assembly, would be within the legislative competence of the Northern Ireland Assembly and would deal with a Northern Ireland transferred matter.

32B Procedure for judicial approval U.K.

(1) The public authority with which the relevant person holds an office, rank or position may apply to the relevant judicial authority for an order under section 32A approving the grant of an authorisation.

(2) The applicant is not required to give notice of the application to—

(a) any person to whom the authorisation relates, or

(b) such a person's legal representatives.

(3) Where, on an application under this section, the relevant judicial authority refuses to approve the grant of the authorisation concerned, the relevant judicial authority may make an order quashing the authorisation.

(4) In this section “ relevant judicial authority ” and “ relevant person ” have the same meaning as in section 32A. ]

Police and [F136 Revenue and Customs] authorisations U.K.

Textual Amendments

F136 Words in cross-heading before s. 33 substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 11; S.I. 2008/219, art. 2(b)

33 Rules for grant of authorisations. U.K.

(1) A person who is a designated person for the purposes of section 28 or 29 by reference to his office, rank or position with a police force F137 . . . shall not grant an authorisation under that section except on an application made by a member of the same force F138 . . . [F139 (subject to [F140 subsection (1ZB)] [F141 and section 33A ] )].

[F142 (1ZA) Subsection (1ZB) applies if the chief officer of police of a police force (“the authorising force”) has made an agreement under section [F143 22A ] of the Police Act 1996 with the chief office of police of one or more other police forces.

(1ZB) A person who is a designated person for the purposes of section 28 or 29 by reference to an office, rank or position with the authorising force may grant an authorisation under that section on an application made by a member of a collaborative force.

(1ZC) For the purposes of subsection (1ZB) a police force is a collaborative force if—

(a) its chief officer of police is a party to the agreement mentioned in subsection (1ZA); and

(b) its members are permitted by the terms of the agreement to make applications for authorisations under section 28 or 29 to a person who is a designated person for the purposes of that section by reference to an office, rank or position with the authorising force.

F144 (1ZD) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F144 (1ZE) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F144 (1ZF) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

[F145 (1A) A person who is a designated person for the purposes of section 28 or 29 by reference to his office or position with the [F146 National Crime Agency] shall not grant an authorisation under that section except on an application made by a member of the staff of the Agency [F147 (subject to section 33A) ] .]

F148 (1B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F149 (2) A person who is a designated person for the purposes of section 28 or 29 by reference to office, rank or position in Her Majesty's Revenue and Customs shall not grant an authorisation under that section except on an application made by an officer of Revenue and Customs.]

(3) [F150 Subject to [F151 subsection (3ZB)] [F152 and section 33A ] ,] A person who is a senior authorising officer by reference to a police force F153 . . . shall not grant an authorisation for the carrying out of intrusive surveillance except—

(a) on an application made by a member of the same force F154 . . . ; and

(b) in the case of an authorisation for the carrying out of intrusive surveillance in relation to any residential premises, where those premises are in the area of operation of that force F154 . . . .

[F155 (3A) [F156 The Director General of the National Crime Agency] or a person designated for the purposes of section 32(6)(k) by that Director General shall not grant an authorisation for the carrying out of intrusive surveillance except on an application made by a [F157 National Crime Agency officer] [F158 (subject to section 33A) ] .]

[F159 (3ZA) Subsection (3ZB) applies if—

(a) the chief officer of police of a police force (“the surveillance authorising force”) has made an agreement under section [F160 22A ] of the Police Act 1996 with the chief office of police of one or more other police forces; and

(b) an application for an authorisation for the carrying out of intrusive surveillance is made by a member of a collaborative force.

(3ZB) A person who is a senior authorising officer by reference to the surveillance authorising force may—

(a) grant the authorisation;

(b) in a case where the authorisation is for the carrying out of intrusive surveillance in relation to any residential premises, grant the authorisation only in relation to premises in the area which is—

(i) the area of operation of a collaborative force; and

(ii) specified in relation to members of that force in the agreement mentioned in subsection (3ZA).

(3ZC) For the purposes of subsections (3ZA) and (3ZB) a police force is a collaborative force if—

(a) its chief officer of police is a party to the agreement mentioned in subsection (3ZA); and

(b) its members are permitted by the terms of the agreement to make applications for authorisations for the carrying out of intrusive surveillance to a person who is a senior authorising officer by reference to the surveillance authorising force.

F161 (3ZD) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F161 (3ZE) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F161 (3ZF) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

[F162 (4) A person who is a senior authorising officer by virtue of a designation by the Commissioners for Her Majesty's Revenue and Customs shall not grant an authorisation for the carrying out of intrusive surveillance except on an application made by an officer of Revenue and Customs.]

[F163 (4A) The [F164 chair of the CMA] shall not grant an authorisation for the carrying out of intrusive surveillance except on an application made by an officer of the [F165 CMA].]

[F166 (4ZA) A senior official who is a senior authorising officer by virtue of a designation by the Secretary of State under section 32(6)(ma) shall not grant an authorisation for the carrying out of intrusive surveillance except on an application made by an immigration officer.]

(5) A single authorisation may combine both—

(a) an authorisation granted under this Part by, or on the application of, an individual who is a member of a police force, [F167 a [F168 National Crime Agency officer] F169 ...,] or who is [F170 an officer of Revenue and Customs [F171 , an immigration officer]] [F172 or the chair or an officer of the CMA]; and

(b) an authorisation given by, or on the application of, that individual under Part III of the M33 Police Act 1997;

but the provisions of this Act or that Act that are applicable in the case of each of the authorisations shall apply separately in relation to the part of the combined authorisation to which they are applicable.

[F173 (5A) In subsections (1ZA) to (1ZC) and (3ZA) to (3ZC) a reference to a police force is to the following—

(a) any police force maintained under section 2 of the Police Act 1996 (police forces in England and Wales outside London);

(b) the metropolitan police force; and

(c) the City of London police force.

F174 (5B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(6) For the purposes of this section—

(a) the area of operation of a police force maintained under section 2 of the M34 Police Act 1996, of the metropolitan police force [F175 or], of the City of London police force F176 ... is the area for which that force is maintained;

[F177 (aa) the area of operation of the Police Service of Scotland is Scotland;]

(b) the area of operation of the Royal Ulster Constabulary is Northern Ireland;

(c) residential premises are in the area of operation of the Ministry of Defence Police if they are premises where the members of that police force, under section 2 of the M35 Ministry of Defence Police Act 1987, have the powers and privileges of a constable;

(d) residential premises are in the area of operation of the [F178 Royal Navy Police] the Royal Military Police or the Royal Air Force Police if they are premises owned or occupied by, or used for residential purposes by, a person subject to service discipline;

(e) the area of operation of the British Transport Police F179 . . . is the United Kingdom;

F180 (f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

and references in this section to the United Kingdom or to any part or area of the United Kingdom include any adjacent waters within the seaward limits of the territorial waters of the United Kingdom.

[F181 (7) In subsection (6) “subject to service law” and “civilian subject to service discipline” have the same meanings as in the Armed Forces Act 2006.]

Textual Amendments

F137 Words in s. 33(1) repealed (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 174, 178, Sch. 4 para. 137(2)(a), Sch. 17; S.I. 2006/378, art. 4(1), Sch. paras. 10, 13(hh) (subject to art. 4(2)-(7))

F138 Words in s. 33(1) repealed (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 174, 178, Sch. 4 para. 137(2)(b), Sch. 17; S.I. 2006/378, art. 4(1), Sch. paras. 10, 13(hh) (subject to art. 4(2)-(7))

F139 Words in s. 33(1) inserted (25.1.2010) by Policing and Crime Act 2009 (c. 26), ss. 9(2), 116; S.I. 2009/3096, art. 3(d)

F140 Words in s. 33(1) substituted (1.4.2013) by The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(11)(a)

F141 Words in s. 33(1) inserted (31.1.2017 for specified purposes, 31.3.2017 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), s. 183(5)(e)(6)(b), Sch. 19 para. 5(2)

F142 S. 33(1ZA)-(1ZF) inserted (25.1.2010) by Policing and Crime Act 2009 (c. 26), ss. 9(3), 116; S.I. 2009/3096, art. 3(d)

F143 Word in s. 33(1ZA) substituted (31.1.2017 for specified purposes, 31.3.2017 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), s. 183(5)(e)(6)(b), Sch. 19 para. 5(3)

F144 S. 33(1ZD)-(1ZF) omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(11)(b)

F145 S. 33(1A) inserted (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 178, Sch. 4 para. 137(3); S.I. 2006/378, art. 4(1), Sch. para. 10 (subject to art. 4(2)-(7))

F146 Words in s. 33(1A) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 83(2); S.I. 2013/1682, art. 3(v)

F147 Words in s. 33(1A) inserted (31.1.2017 for specified purposes, 31.3.2017 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), s. 183(5)(e)(6)(b), Sch. 19 para. 5(4)

F148 S. 33(1B) omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(11)(b)

F149 S. 33(2) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 11(a); S.I. 2008/219, art. 2(b)

F150 Words in s. 33(3) inserted (25.1.2010) by Policing and Crime Act 2009 (c. 26), ss. 9(4), 116; S.I. 2009/3096, art. 3(d)

F151 Words in s. 33(3) substituted (1.4.2013) by The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(11)(c)

F152 Words in s. 33(3) inserted (31.1.2017 for specified purposes, 31.3.2017 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), s. 183(5)(e)(6)(b), Sch. 19 para. 5(5)

F153 Words in s. 33(3) repealed (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 174, 178, Sch. 4 para. 137(4)(a), Sch. 17; S.I. 2006/378, art. 4(1), Sch. paras. 10, 13(hh) (subject to art. 4(2)-(7))

F154 Words in s. 33(3) repealed (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 174, 178, Sch. 4 para. 137(4)(b), Sch. 17; S.I. 2006/378, art. 4(1), Sch. paras. 10, 13(hh) (subject to art. 4(2)-(7))

F155 S. 33(3A) inserted (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 178, Sch. 4 para. 137(5); S.I. 2006/378, art. 4(1), Sch. para. 10 (subject to art. 4(2)-(7))

F156 Words in s. 33(3A) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 83(3)(a); S.I. 2013/1682, art. 3(v)

F157 Words in s. 33(3A) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 83(3)(b); S.I. 2013/1682, art. 3(v)

F158 Words in s. 33(3A) inserted (31.1.2017 for specified purposes, 31.3.2017 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), s. 183(5)(e)(6)(b), Sch. 19 para. 5(7)

F159 S. 33(3ZA)-(3ZF) inserted (25.1.2010) by Policing and Crime Act 2009 (c. 26), ss. 9(5), 116; S.I. 2009/3096, art. 3(d)

F160 Word in s. 33(3ZA)(a) substituted (31.1.2017 for specified purposes, 31.3.2017 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), s. 183(5)(e)(6)(b), Sch. 19 para. 5(6)

F161 S. 33(3ZD)-(3ZF) omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(11)(d)

F162 S. 33(4) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 11(b); S.I. 2008/219, art. 2(b)

F163 S. 33(4A) inserted (20.6.2003) by 2002 c. 40, ss. 199(3), 279; S.I. 2003/1397, art. 2(1), Sch.

F164 Words in s. 33(4A) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 135(2)(a) (with art. 3)

F165 Word in s. 33(4A) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 135(2)(b) (with art. 3)

F166 S. 33(4ZA) inserted (25.6.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 21 para. 7(2) (with Sch. 20 para. 29); S.I. 2013/1042, art. 4(i)

F167 Words in s. 33(5)(a) substituted (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 178, Sch. 4 para. 137(6); S.I. 2006/378, art. 4(1), Sch. para. 10 (subject to art. 4(2)-(7))

F168 Words in s. 33(5)(a) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 83(4); S.I. 2013/1682, art. 3(v)

F169 Words in s. 33(5)(a) omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(11)(e)

F170 Words in s. 33(5)(a) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 11(c); S.I. 2008/219, art. 2(b)

F171 Words in s. 33(5)(a) inserted (25.6.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 21 para. 7(3) (with Sch. 20 para. 29); S.I. 2013/1042, art. 4(i)

F172 Words in s. 33(5)(a) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 135(3) (with art. 3)

F173 S. 33(5A)(5B) inserted (25.1.2010) by Policing and Crime Act 2009 (c. 26), ss. 9(6), 116; S.I. 2009/3096, art. 3(d)

F174 S. 33(5B) omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(11)(f)

F175 Word in s. 33(6)(a) inserted (1.4.2013) by The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(11)(g)(i)(aa)

F176 Words in s. 33(6)(a) omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(11)(g)(i)(bb)

F177 S. 33(6)(aa) inserted (1.4.2013) by The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(11)(g)(ii)

F178 Words in s. 33(6)(d) substituted (4.6.2007) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 171(2)(a); S.I. 2007/1442, art. 2(1)

F179 Words in s. 33(6)(e) repealed (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 174, 178, Sch. 4 para. 137(7)(a), Sch. 17; S.I. 2006/378, art. 4(1), Sch. paras. 10, 13(hh) (subject to art. 4(2)-(7))

F180 S. 33(6)(f) repealed (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 174, 178, Sch. 4 para. 137(7)(b), Sch. 17; S.I. 2006/378, art. 4(1), Sch. paras. 10, 13(hh) (subject to art. 4(2)-(7))

F181 S. 33(7) substituted (28.3.2009 for certain purposes otherwise 31.10.2009) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 171(3); S.I. 2009/812, art. 3 (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

Marginal Citations

M33 1997 c. 50.

M34 1996 c. 16.

M35 1987 c. 4.

[F182 33A Section 33: further provision in cases where NCA is party to collaboration agreement U.K.

(1) This section applies where the Director General of the National Crime Agency has made a collaboration agreement with the chief officer of police of one or more police forces (a “collaborative police force”).

(2) A person who is a designated person for the purposes of section 28 or 29 by reference to an office, rank or position with a collaborative police force may grant an authorisation under that section on an application made by a National Crime Agency officer.

(3) A person who is a designated person for the purposes of section 28 or 29 by reference to their position as a National Crime Agency officer may grant an authorisation under that section on an application made by a member of a collaborative police force.

(4) Authorisations may be granted to persons by virtue of subsection (2) or (3) only if such persons are permitted under the terms of the collaboration agreement to make applications for authorisations under section 28 or 29 to a person who is a designated person for the purposes of that section—

(a) in the case of authorisations granted by virtue of subsection (2), by reference to an office, rank or position with the collaborative police force concerned, or

(b) in the case of authorisations granted by virtue of subsection (3), by reference to the person's position as a National Crime Agency officer.

(5) A person who is a senior authorising officer by reference to a collaborative police force may grant an authorisation for the carrying out of intrusive surveillance on an application made by a National Crime Agency officer.

(6) The Director General of the National Crime Agency, or a person designated for the purposes of section 32(6)(k) by that Director General, may grant an authorisation for the carrying out of intrusive surveillance on an application made by a member of a collaborative police force.

(7) Authorisations may be granted to persons by virtue of subsection (5) or (6) only if such persons are permitted under the terms of the collaboration agreement to make applications for authorisations for the carrying out of intrusive surveillance to a person who—

(a) in the case of authorisations granted by virtue of subsection (5), is a senior authorising officer by reference to the collaborative police force concerned, or

(b) in the case of authorisations granted by virtue of subsection (6), is the Director General of the National Crime Agency or a person designated for the purposes of section 32(6)(k) by that Director General.

(8) In the case of an application made by virtue of subsection (5) or (6) for the carrying out of intrusive surveillance in relation to any residential premises, authorisation may be granted only in relation to premises in the area which is—

(a) the area of operation of a collaborative police force, and

(b) specified in relation to members of that force in the collaboration agreement.

(9) For the purposes of this section the area of operation of a collaborative police force is the area for which that force is maintained.

(10) In this section—

• “collaboration agreement” means an agreement made under section 22A of the Police Act 1996;

• “collaborative police force” has the meaning given by subsection (1);

• “police force” has the meaning given by section 33(5A).]

Textual Amendments

F182 S. 33A inserted (31.1.2017 for specified purposes, 31.3.2017 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), s. 183(5)(e)(6)(b), Sch. 19 para. 6

34 Grant of authorisations in the senior officer’s absence. U.K.

(1) This section applies in the case of an application for an authorisation for the carrying out of intrusive surveillance where—

(a) the application is one made by a member of a police force, [F183 a [F184 National Crime Agency officer]] or by [F185 [F186 an officer of the CMA] or] [F187 an officer of Revenue and Customs [F188 or an immigration officer];] and

(b) the case is urgent.

(2) If —

(a) it is not reasonably practicable, having regard to the urgency of the case, for the application to be considered by any person who is a senior authorising officer by reference to the force [F189 or Agency] in question or, as the case may be, [F190 as the chair of the CMA or] by virtue of a designation by [F191 the Commissioners for Her Majesty's Revenue and Customs [F192 or the Secretary of State],] and

(b) it also not reasonably practicable, having regard to the urgency of the case, for the application to be considered by a person (if there is one) who is entitled, as a designated deputy of a senior authorising officer, to exercise the functions in relation to that application of such an officer,

the application may be made to and considered by any person who is entitled under subsection (4) to act for any senior authorising officer who would have been entitled to consider the application.

(3) A person who considers an application under subsection (1) shall have the same power to grant an authorisation as the person for whom he is entitled to act.

(4) For the purposes of this section—

(a) a person is entitled to act for the chief constable of a police force maintained under section 2 of the M36 Police Act 1996 if he holds the rank of assistant chief constable in that force;

(b) a person is entitled to act for the Commissioner of Police of the Metropolis, or for an Assistant Commissioner of Police of the Metropolis, if he holds the rank of commander in the metropolitan police force;

(c) a person is entitled to act for the Commissioner of Police for the City of London if he holds the rank of commander in the City of London police force;

(d) a person is entitled to act for the chief constable of [F193 the Police Service of Scotland if he holds the rank of deputy or assistant chief constable of the Police Service of Scotland];

(e) a person is entitled to act for the Chief Constable of the Royal Ulster Constabulary, or for the Deputy Chief Constable of the Royal Ulster Constabulary, if he holds the rank of assistant chief constable in the Royal Ulster Constabulary;

(f) a person is entitled to act for the Chief Constable of the Ministry of Defence Police if he holds the rank of deputy or assistant chief constable in that force;

(g) a person is entitled to act for the Provost Marshal of the [F194 Royal Navy Police] if he holds the position of assistant Provost Marshal in [F195 that force];

(h) a person is entitled to act for the Provost Marshal of the Royal Military Police or the Provost Marshal of the Royal Air Force Police if he holds the position of deputy Provost Marshal in the police force in question;

(i) a person is entitled to act for the Chief Constable of the British Transport Police if he holds the rank of deputy or assistant chief constable in that force;

[F196 (j) a person is entitled to act for the [F197 Director General of the National Crime Agency] if he is a person designated for the purposes of this paragraph by that Director General as a person entitled so to act in an urgent case;]

(l) a person is entitled to act for a person who is a senior authorising officer by virtue of a designation by [F198 the Commissioners for Her Majesty's Revenue and Customs,] if he is [F199 a senior official] designated for the purposes of this paragraph by those Commissioners as a person entitled so to act in an urgent case.

[F200 (la) a person is entitled to act for a person who is a senior authorising officer by virtue of a designation under section 32(6)(ma), if the person is a senior official in the department of the Secretary of State by whom functions relating to immigration are exercisable who is designated for the purposes of this paragraph by the Secretary of State as a person entitled so to act in an urgent case;]

[F201 (m) a person is entitled to act for the [F202 chair of the CMA if he is an officer of the CMA] designated by it for the purposes of this paragraph as a person entitled so to act in an urgent case.]

F203 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) In this section “designated deputy”—

[F204 (a) in relation to the chief constable for a police force in England and Wales, means—

(i) the person who is the appropriate deputy chief constable for the purposes of section 12A(1) of the Police Act 1996, or

(ii) a person holding the rank of assistant chief constable who is designated to act under section 12A(2) of that Act;

(aa) in relation to the chief constable [F205 of the Police Service of Scotland, means the deputy chief constable designated under section 18(3) of the Police and Fire Reform (Scotland) Act 2012;] —

(i) a person holding the rank of deputy chief constable and, where there is more than one person in the police force who holds that rank, who is designated as the officer having the powers and duties conferred on a deputy chief constable by section 5A(1) of the Police (Scotland) Act 1967, or

(ii) a person holding the rank of assistant chief constable who is designated to act under section 5A(2) of that Act;]

(b) in relation to the Commissioner of Police for the City of London, means a person authorised to act under section 25 of the M37 City of London Police Act 1839;

F206 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F183 Words in s. 34(1)(a) substituted (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 178, Sch. 4 para. 138(2); S.I. 2006/378, art. 4(1), Sch. para. 10 (subject to art. 4(2)-(7))

F184 Words in s. 34(1)(a) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 84(2); S.I. 2013/1682, art. 3(v)

F185 Words in s. 34(1)(a) inserted (20.6.2003) by 2002 c. 40, ss. 199(5)(a), 279; S.I. 2003/1397, art. 2(1), Sch.

F186 Words in s. 34(1)(a) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 136(2) (with art. 3)

F187 Words in s. 34(1) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 12(a); S.I. 2008/219, art. 2(b)

F188 Words in s. 34(1)(a) inserted (25.6.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 21 para. 8(2) (with Sch. 20 para. 29); S.I. 2013/1042, art. 4(i)

F189 Words in s. 34(2)(a) substituted (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 178, Sch. 4 para. 138(3); S.I. 2006/378, art. 4(1), Sch. para. 10 (subject to art. 4(2)-(7))

F190 Words in s. 34(2)(a) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 136(3) (with art. 3)

F191 Words in s. 34(2)(a) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 12(b); S.I. 2008/219, art. 2(b)

F192 Words in s. 34(2)(a) inserted (25.6.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 21 para. 8(3) (with Sch. 21 para. 40); S.I. 2013/1042, art. 4(i)

F193 Words in s. 34(4)(d) substituted (1.4.2013) by The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(12)(a)

F194 Words in s. 34(4)(g) substituted (4.6.2007) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 172(a); S.I. 2007/1442, art. 2(1)

F195 Words in s. 34(4)(g) substituted (4.6.2007) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 172(b); S.I. 2007/1442, art. 2(1)

F196 S. 34(4)(j) substituted (1.4.2006) for s. 34(4)(j)(k) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 178, Sch. 4 para. 138(4); S.I. 2006/378, art. 4(1), Sch. para. 10 (subject to art. 4(2)-(7))

F197 Words in s. 34(4)(j) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 84(3); S.I. 2013/1682, art. 3(v)

F198 Words in s. 34(4)(l) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 12(c)(i); S.I. 2008/219, art. 2(b)

F199 Words in s. 34(4)(l) inserted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 12(c)(ii); S.I. 2008/219, art. 2(b)

F200 S. 34(4)(la) inserted (25.6.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 21 para. 8(4) (with Sch. 21 para. 40); S.I. 2013/1042, art. 4(i)

F201 S. 34(4)(m) inserted (20.6.2003) by 2002 c. 40, ss. 199(5)(c), 279; S.I. 2003/1397, art. 2(1), Sch.

F202 Words in s. 34(4)(m) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 136(4) (with art. 3)

F203 S. 34(5) repealed (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 174, 178, Sch. 4 para. 138(5), Sch. 17; S.I. 2006/378, art. 4(1), Sch. paras. 10, 13(hh) (subject to art. 4(2)-(7))

F204 S. 34(6)(a)(aa) substituted (8.11.2006) for s. 34(6)(a) by Police and Justice Act 2006 (c. 48), ss. 52, 53, Sch. 14 para. 39

F205 Words in s. 34(6)(aa) substituted (1.4.2013) by The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(12)(b)

F206 S. 34(6)(c) repealed (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 174, 178, Sch. 4 para. 138(6), Sch. 17; S.I. 2006/378, art. 4(1), Sch. paras. 10, 13(hh) (subject to art. 4(2)-(7))

Marginal Citations

M36 1996 c. 16.

M37 1839 c. xciv.

35 Notification of authorisations for intrusive surveillance. U.K.

(1) Where a person grants or cancels a [F207 police, [F208 the National Crime Agency], [F209 Revenue and Customs [F210 , immigration]]] [F211 or CMA] authorisation for the carrying out of intrusive surveillance, he shall give notice that he has done so to [F212 a Judicial Commissioner] .

(2) A notice given for the purposes of subsection (1)—

(a) must be given in writing as soon as reasonably practicable after the grant or, as the case may be, cancellation of the authorisation to which it relates;

(b) must be given in accordance with any such arrangements made for the purposes of this paragraph by the [F213 Investigatory Powers Commissioner] as are for the time being in force; and

(c) must specify such matters as the Secretary of State may by order prescribe.

(3) A notice under this section of the grant of an authorisation shall, as the case may be, either—

(a) state that the approval of a [F214 Judicial Commissioner] is required by section 36 before the grant of the authorisation will take effect; or

(b) state that the case is one of urgency and set out the grounds on which the case is believed to be one of urgency.

(4) Where a notice for the purposes of subsection (1) of the grant of an authorisation has been received by [F215 a Judicial Commissioner ] , he shall, as soon as practicable—

(a) scrutinise the authorisation; and

(b) in a case where notice has been given in accordance with subsection (3)(a), decide whether or not to approve the authorisation.

(5) Subject to subsection (6), the Secretary of State shall not make an order under subsection (2)(c) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(6) Subsection (5) does not apply in the case of the order made on the first occasion on which the Secretary of State exercises his power to make an order under subsection (2)(c).

(7) The order made on that occasion shall cease to have effect at the end of the period of forty days beginning with the day on which it was made unless, before the end of that period, it has been approved by a resolution of each House of Parliament.

(8) For the purposes of subsection (7)—

(a) the order’s ceasing to have effect shall be without prejudice to anything previously done or to the making of a new order; and

(b) in reckoning the period of forty days no account shall be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

(9) Any notice that is required by any provision of this section to be given in writing may be given, instead, by being transmitted by electronic means.

(10) In this section references to a [F216 police, [F217 the National Crime Agency], [F218 Revenue and Customs [F219 immigration]]] [F220 or CMA] authorisation are references to an authorisation granted by—

(a) a person who is a senior authorising officer by reference to a police force [F221 or the [F222 National Crime Agency]];

(b) a person who is a senior authorising officer by virtue of a designation [F223 under section 32(6)(m) or (ma)] ; F224 . . .

[F225 (ba) the chair of the CMA; or]

(c) a person who for the purposes of section 34 is entitled to act for a person falling within paragraph (a) or for a person falling within paragraph (b) [F226 or for a person falling within paragraph (ba)].

Textual Amendments

F207 Words in s. 35(1) substituted (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 178, Sch. 4 para. 139(2); S.I. 2006/378, art. 4(1), Sch. para. 10 (subject to art. 4(2)-(7))

F208 Words in s. 35(1) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 85(2); S.I. 2013/1682, art. 3(v)

F209 Words in s. 35(1) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 13(a); S.I. 2008/219, art. 2(b)

F210 Word in s. 35(1) inserted (25.6.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 21 para. 9(2) (with Sch. 21 para. 40); S.I. 2013/1042, art. 4(i)

F211 Words in s. 35(1) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 137(2) (with art. 3)

F212 Words in s. 35(1) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(a), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F213 Words in s. 35(2)(b) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(b), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F214 Words in s. 35(3)(a) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(c), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F215 Words in s. 35(4) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(a), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F216 Words in s. 35(10) substituted (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 178, Sch. 4 para. 139(3)(a); S.I. 2006/378, art. 4(1), Sch. para. 10 (subject to art. 4(2)-(7))

F217 Words in s. 35(10) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 85(3)(a); S.I. 2013/1682, art. 3(v)

F218 Words in s. 35(10) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 13(b); S.I. 2008/219, art. 2(b)

F219 Word in s. 35(10) inserted (25.6.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 21 para. 9(3)(a) (with Sch. 21 para. 40); S.I. 2013/1042, art. 4(i)

F220 Words in s. 35(10) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 137(3)(a) (with art. 3)

F221 Words in s. 35(10)(a) substituted (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 178, Sch. 4 para. 139(3)(b); S.I. 2006/378, art. 4(1), Sch. para. 10 (subject to art. 4(2)-(7))

F222 Words in s. 35(10)(a) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 85(3)(b); S.I. 2013/1682, art. 3(v)

F223 Words in s. 35(10)(b) substituted (25.6.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 21 para. 9(3)(b) (with Sch. 21 para. 40); S.I. 2013/1042, art. 4(i)

F224 Word in s. 35(10)(b) repealed (20.6.2003) by 2002 c. 40, ss. 278, 279, Sch. 26; S.I. 2003/1397, art. 2(1), Sch. (with art. 10)

F225 S. 35(10)(ba) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 137(3)(b) (with art. 3)

F226 Words in s. 35(10)(c) inserted (20.6.2003) by 2002 c. 40, ss. 199(6)(c), 279; S.I. 2003/1397, art. 2(1), Sch.

Modifications etc. (not altering text)

C50 S. 35 excluded (27.6.2018) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 8 para. 25(a) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/652, reg. 12(e)(iii)

36 Approval required for authorisations to take effect. U.K.

(1) This section applies where an authorisation for the carrying out of intrusive surveillance has been granted on the application of—

(a) a member of a police force;

[F227 (b) a National Crime Agency officer;]

[F228 (d) an officer of Revenue and Customs F229 ...;]

[F230 (da) an immigration officer; or]

(e) [F231 an officer of the CMA].

(2) Subject to subsection (3), the authorisation shall not take effect until such time (if any) as—

(a) the grant of the authorisation has been approved by [F232 a Judicial Commissioner] ; and

(b) written notice of the Commissioner’s decision to approve the grant of the authorisation has been given, in accordance with subsection (4), to the person who granted the authorisation.

(3) Where the person who grants the authorisation—

(a) believes that the case is one of urgency, and

(b) gives notice in accordance with section 35(3)(b),

subsection (2) shall not apply to the authorisation, and the authorisation shall have effect from the time of its grant.

(4) Where subsection (2) applies to the authorisation—

(a) a [F233 Judicial Commissioner] shall give his approval under this section to the authorisation if, and only if, he is satisfied that there are reasonable grounds for believing that the requirements of section 32(2)(a) and (b) are satisfied in the case of the authorisation; and

(b) a [F233 Judicial Commissioner ] who makes a decision as to whether or not the authorisation should be approved shall, as soon as reasonably practicable after making that decision, give written notice of his decision to the person who granted the authorisation.

(5) If [F234 a Judicial Commissioner] decides not to approve an authorisation to which subsection (2) applies, he shall make a report of his findings to the most senior relevant person.

(6) In this section “the most senior relevant person” means—

(a) where the authorisation was granted by the senior authorising officer with any police force who is not someone’s deputy, that senior authorising officer;

(b) where the authorisation was granted by the [F235 Director General of the National Crime Agency], that Director General;

(c) where the authorisation was granted by a senior authorising officer with a police force who is someone’s deputy, the senior authorising officer whose deputy granted the authorisation;

[F236 (d) where the authorisation was granted by a person designated for the purposes of section 32(6)(k), or by a person entitled to act for the [F237 Director General of the National Crime Agency] by virtue of section 34(4)(j), that Director General;]

(f) where the authorisation was granted by a person entitled to act for a senior authorising officer under section 34(4)(a) to (i), the senior authorising officer in the force in question who is not someone’s deputy; [F238 and]

[F239 (g) where the authorisation was granted by an officer of Revenue and Customs, the officer of Revenue and Customs for the time being designated for the purposes of this paragraph by a written notice given to the [F240 Investigatory Powers Commissioner ] by the Commissioners for Her Majesty's Revenue F241 ... Customs;]

[F242 (ga) where the authorisation was granted by a senior official designated under section 32(6)(ma) or entitled to act for such an official under section 34(4)(la), the senior official designated under section 32(6)(ma); and]

(h) where the authorisation was granted by the [F243 chair of the CMA] or a person entitled to act for [F244 the chair of the CMA] by virtue of section 34(4)(m), [F245 that chair].

(7) The references in subsection (6) to a person’s deputy are references to the following—

(a) in relation to—

(i) a chief constable of a police force maintained under section 2 of the M38 Police Act 1996,

(ii) the Commissioner of Police for the City of London, or

[F246 (iii) the chief constable of the Police Service of Scotland,]

to his designated deputy;

(b) in relation to the Commissioner of Police of the Metropolis, to an Assistant Commissioner of Police of the Metropolis; and

(c) in relation to the Chief Constable of the Royal Ulster Constabulary, to the Deputy Chief Constable of the Royal Ulster Constabulary;

and in this subsection and that subsection “designated deputy” has the same meaning as in section 34.

(8) Any notice that is required by any provision of this section to be given in writing may be given, instead, by being transmitted by electronic means.

Textual Amendments

F227 S. 36(1)(b) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 86(2); S.I. 2013/1682, art. 3(v)

F228 S. 36(1)(d) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 14(a); S.I. 2008/219, art. 2(b)

F229 Word in s. 36(1)(d) omitted (25.6.2013) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 21 para. 10(2)(a) (with Sch. 21 para. 40); S.I. 2013/1042, art. 4(i)

F230 S. 36(1)(da) inserted (25.6.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 21 para. 10(2)(b) (with Sch. 21 para. 40); S.I. 2013/1042, art. 4(i)

F231 Words in s. 36(1)(e) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 138(2) (with art. 3)

F232 Words in s. 36(2)(a) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(a), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F233 Words in s. 36(4)(a)(b) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(c), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F234 Words in s. 36(5) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(a), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F235 Words in s. 36(6)(b) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 86(3); S.I. 2013/1682, art. 3(v)

F236 S. 36(6)(d) substituted (1.4.2006) for s. 36(6)(d)(e) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 178, Sch. 4 para. 140(3)(b); S.I. 2006/378, art. 4(1), Sch. para. 10 (subject to art. 4(2)-(7))

F237 Words in s. 36(6)(d) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 86(3); S.I. 2013/1682, art. 3(v)

F238 Word in s. 36(6)(f) repealed (20.6.2003) by 2002 c. 40, ss. 278, 279, Sch. 26; S.I. 2003/1397, art. 2(1), Sch. (with art. 10)

F239 S. 36(6)(g) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 14(b); S.I. 2008/219, art. 2(b)

F240 Words in s. 36(6)(g) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(b), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F241 Word in s. 36(6)(g) omitted (25.6.2013) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 21 para. 10(3)(a) (with Sch. 21 para. 40); S.I. 2013/1042, art. 4(i)

F242 S. 36(6)(ga) inserted (25.6.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 21 para. 10(3)(b) (with Sch. 21 para. 40); S.I. 2013/1042, art. 4(i)

F243 Words in s. 36(6)(h) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 138(3)(a) (with art. 3)

F244 Words in s. 36(6)(h) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 138(3)(b) (with art. 3)

F245 Words in s. 36(6)(h) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 138(3)(c) (with art. 3)

F246 S. 36(7)(a)(iii) substituted (1.4.2013) by The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(13)

Modifications etc. (not altering text)

C51 S. 36 excluded (27.6.2018) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 8 para. 25(b) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/652, reg. 12(e)(iii)

Marginal Citations

M38 1996 c. 16.

37 Quashing of police and [F247 Revenue and Customs] authorisations etc. U.K.

(1) This section applies where an authorisation for the carrying out of intrusive surveillance has been granted on the application of—

(a) a member of a police force;

[F248 (b) a National Crime Agency officer;]

[F249 (d) an officer of Revenue and Customs F250 ... ;]

[F251 (da) an immigration officer; or]

[F252 (e) an officer of the CMA.]

(2) Where [F253 a Judicial Commissioner] is at any time satisfied that, at the time when the authorisation was granted or at any time when it was renewed, there were no reasonable grounds for believing that the requirements of section 32(2)(a) and (b) were satisfied, he may quash the authorisation with effect, as he thinks fit, from the time of the grant of the authorisation or from the time of any renewal of the authorisation.

(3) If [F253 a Judicial Commissioner] is satisfied at any time while the authorisation is in force that there are no longer any reasonable grounds for believing that the requirements of section 32(2)(a) and (b) are satisfied in relation to the authorisation, he may cancel the authorisation with effect from such time as appears to him to be the time from which those requirements ceased to be so satisfied.

(4) Where, in the case of any authorisation of which notice has been given in accordance with section 35(3)(b), [F253 a Judicial Commissioner] is at any time satisfied that, at the time of the grant or renewal of the authorisation to which that notice related, there were no reasonable grounds for believing that the case was one of urgency, he may quash the authorisation with effect, as he thinks fit, from the time of the grant of the authorisation or from the time of any renewal of the authorisatio

(5) Subject to subsection (7), where [F253 a Judicial Commissioner ] quashes an authorisation under this section, he may order the destruction of any records relating wholly or partly to information obtained by the authorised conduct after the time from which his decision takes effect.

(6) Subject to subsection (7), where—

(a) an authorisation has ceased to have effect (otherwise than by virtue of subsection (2) or (4)), and

(b) [F253 a Judicial Commissioner] is satisfied that there was a time while the authorisation was in force when there were no reasonable grounds for believing that the requirements of section 32(2)(a) and (b) continued to be satisfied in relation to the authorisation,

he may order the destruction of any records relating, wholly or partly, to information obtained at such a time by the authorised conduct.

(7) No order shall be made under this section for the destruction of any records required for pending criminal or civil proceedings.

(8) Where [F254 a Judicial Commissioner] exercises a power conferred by this section, he shall, as soon as reasonably practicable, make a report of his exercise of that power, and of his reasons for doing so—

(a) to the most senior relevant person (within the meaning of section 36); and

(b) to the [F255 Investigatory Powers Commissioner (if he is not that Commissioner)] .

(9) Where an order for the destruction of records is made under this section, the order shall not become operative until such time (if any) as—

(a) [F256 any period] for appealing against the decision to make the order has expired; and

(b) any appeal brought within that period has been dismissed by the [F257 Investigatory Powers Commissioner] .

(10) No notice shall be required to be given under section 35(1) in the case of a cancellation under subsection (3) of this section.

Textual Amendments

F247 Words in s. 37 heading substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 15; S.I. 2008/219, art. 2(b)

F248 S. 37(1)(b) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 87; S.I. 2013/1682, art. 3(v)

F249 S. 37(1)(d) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 15; S.I. 2008/219, art. 2(b)

F250 Word in s. 37(1)(d) omitted (25.6.2013) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 21 para. 11(a) (with Sch. 21 para. 40); S.I. 2013/1042, art. 4(i)

F251 S. 37(1)(da) inserted (25.6.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 21 para. 11(b) (with Sch. 21 para. 40); S.I. 2013/1042, art. 4(i)

F252 S. 37(1)(e) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 139 (with art. 3)

F253 Words in s. 37(2)-(6) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(a), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F254 Words in s. 37(8) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(a), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F255 Words in s. 37(8)(b) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(d), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F256 Words in s. 37(9)(a) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 76 (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(j)

F257 Words in s. 37(9)(b) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(b), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

Modifications etc. (not altering text)

C52 S. 37(2)-(4) excluded (27.6.2018) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 8 para. 25(c) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/652, reg. 12(e)(iii)

38 Appeals against decisions by [F258 Judicial Commissioners] . U.K.

(1) Any senior authorising officer may appeal to the [F259 Investigatory Powers Commissioner] against any of the following—

(a) any refusal of [F260 a Judicial Commissioner (other than the Investigatory Powers Commissioner)] to approve an authorisation for the carrying out of intrusive surveillance;

(b) any decision of such a Commissioner to quash or cancel such an authorisation;

(c) any decision of such a Commissioner to make an order under section 37 for the destruction of records.

(2) In the case of an authorisation granted by the designated deputy of a senior authorising office or by a person who for the purposes of section 34 is entitled to act for a senior authorising officer, that designated deputy or person shall also be entitled to appeal under this section.

(3) An appeal under this section must be brought within the period of seven days beginning with the day on which the refusal or decision appealed against is reported to the appellant.

(4) Subject to subsection (5), the [F261 Investigatory Powers Commissioner] , on an appeal under this section, shall allow the appeal if—

(a) he is satisfied that there were reasonable grounds for believing that the requirements of section 32(2)(a) and (b) were satisfied in relation to the authorisation at the time in question; and

(b) he is not satisfied that the authorisation is one of which notice was given in accordance with section 35(3)(b) without there being any reasonable grounds for believing that the case was one of urgency.

(5) If, on an appeal falling within subsection (1)(b), the [F261 Investigatory Powers Commissioner ] —

(a) is satisfied that grounds exist which justify the quashing or cancellation under section 37 of the authorisation in question, but

(b) considers that the authorisation should have been quashed or cancelled from a different time from that from which it was quashed or cancelled by the [F262 Judicial Commissioner] against whose decision the appeal is brought,

he may modify that Commissioner’s decision to quash or cancel the authorisation, and any related decision for the destruction of records, so as to give effect to the decision under section 37 that he considers should have been made.

(6) Where, on an appeal under this section against a decision to quash or cancel an authorisation, the [F261 Investigatory Powers Commissioner] allows the appeal he shall also quash any related order for the destruction of records relating to information obtained by the authorised conduct.

(7) In this section “designated deputy” has the same meaning as in section 34.

Textual Amendments

F258 Words in s. 38 heading substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(g), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F259 Words in s. 38(1) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(b), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F260 Words in s. 38(1)(a) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(e), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F261 Words in s. 38(4)-(6) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(b), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F262 Words in s. 38(5)(b) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(f), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

Modifications etc. (not altering text)

C53 S. 38 excluded (27.6.2018) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 8 para. 25(d) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/652, reg. 12(e)(iii)

39 Appeals to the [F263 Investigatory Powers Commissioner] : supplementary. U.K.

(1) Where the [F264 Investigatory Powers Commissioner] has determined an appeal under section 38, he shall give notice of his determination to both—

(a) the person by whom the appeal was brought; and

(b) the [F265 Judicial Commissioner] whose decision was appealed against.

(2) Where the determination of the [F266 Investigatory Powers Commissioner ] on an appeal under section 38 is a determination to dismiss the appeal, the [F266 Investigatory Powers Commissioner ] shall make a report of his findings—

(a) to the persons mentioned in subsection (1); and

(b) to the Prime Minister.

(3) [F267 Subsections (6) to (8) of section 234 of the Investigatory Powers Act 2016] (reports to be laid before Parliament and exclusion of matters from the report) apply in relation to any report to the Prime Minister under subsection (2) of this section as they apply in relation to any report under [F268 subsection (1) of that section] .

(4) Subject to subsection (2) of this section, the [F269 Investigatory Powers Commissioner] shall not give any reasons for any determination of his on an appeal under section 38.

Textual Amendments

F263 Words in s. 39 heading substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(b), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F264 Words in s. 39(1) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(b), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F265 Words in s. 39(1)(b) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(f), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F266 Words in s. 39(2) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(b), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F267 Words in s. 39(3) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 77(a) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(j)

F268 Words in s. 39(3) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 77(b) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(j)

F269 Words in s. 39(4) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(b), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F270 40 Information to be provided to Surveillance Commissioners. U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F270 S. 40 omitted (1.9.2017) by virtue of Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 78 (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(j) (with reg. 7)

Other authorisations U.K.

41 Secretary of State authorisations. U.K.

(1) The Secretary of State shall not grant an authorisation for the carrying out of intrusive surveillance except on an application made by—

(a) a member of any of the intelligence services;

(b) an official of the Ministry of Defence;

(c) a member of Her Majesty’s forces;

(d) an individual holding an office, rank or position with any such public authority as may be designated for the purposes of this section as an authority whose activities may require the carrying out of intrusive surveillance.

(2) Section 32 shall have effect in relation to the grant of an authorisation by the Secretary of State on the application of an official of the Ministry of Defence, or of a member of Her Majesty’s forces, as if the only matters mentioned in subsection (3) of that section were—

(a) the interests of national security; and

(b) the purpose of preventing or detecting serious crime.

(3) The designation of any public authority for the purposes of this section shall be by order made by the Secretary of State.

(4) The Secretary of State may by order provide, in relation to any public authority, that an application for an authorisation for the carrying out of intrusive surveillance may be made by an individual holding an office, rank or position with that authority only where his office, rank or position is one prescribed by the order.

(5) The Secretary of State may by order impose restrictions—

(a) on the authorisations for the carrying out of intrusive surveillance that may be granted on the application of an individual holding an office, rank or position with any public authority designated for the purposes of this section; and

(b) on the circumstances in which, or the purposes for which, such authorisations may be granted on such an application.

(6) The Secretary of State shall not make a designation under subsection (3) unless a draft of the order containing the designation has been laid before Parliament and approved by a resolution of each House.

(7) References in this section to a member of Her Majesty’s forces do not include references to any member of Her Majesty’s forces who is a member of a police force by virtue of his service with the [F271 Royal Navy Police] , the Royal Military Police or the Royal Air Force Police.

Textual Amendments

F271 Words in s. 41(7) substituted (4.6.2007) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 173; S.I. 2007/1442, art. 2(1)

42 Intelligence services authorisations. U.K.

(1) The grant by the Secretary of State [F272 or, the Scottish Ministers (by virtue of provision under section 63 of the Scotland Act 1998)] on the application of a member of one of the intelligence services of any authorisation under this Part must be made by the issue of a warrant.

(2) A single warrant issued by the Secretary of State [F272 or, the Scottish Ministers (by virtue of provision under s. 63 of the Scotland Act 1998)]may combine both—

(a) an authorisation under this Part; and

(b) an intelligence services warrant;

but the provisions of this Act or the M39 Intelligence Services Act 1994 that are applicable in the case of the authorisation under this Part or the intelligence services warrant shall apply separately in relation to the part of the combined warrant to which they are applicable.

(3) Intrusive surveillance in relation to any premises or vehicle in the British Islands shall be capable of being authorised by a warrant issued under this Part on the application of a member of the Secret Intelligence Service or GCHQ only if the authorisation contained in the warrant is one satisfying the requirements of section 32(2)(a) otherwise than in connection with any functions of that intelligence service in support of the prevention or detection of serious crime.

(4) Subject to subsection (5), the functions of the Security Service shall include acting on behalf of the Secret Intelligence Service or GCHQ in relation to—

(a) the application for and grant of any authorisation under this Part in connection with any matter within the functions of the Secret Intelligence Service or GCHQ; and

(b) the carrying out, in connection with any such matter, of any conduct authorised by such an authorisation.

(5) Nothing in subsection (4) shall authorise the doing of anything by one intelligence service on behalf of another unless—

(a) it is something which either the other service or a member of the other service has power to do; and

(b) it is done otherwise than in connection with functions of the other service in support of the prevention or detection of serious crime.

(6) In this section “intelligence services warrant” means a warrant under section 5 of the M40 Intelligence Services Act 1994.

Textual Amendments

F272 Words in s 42(1)(2) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 7(a)(b) (with art. 6)

Modifications etc. (not altering text)

C54 S. 42 modified (S.) (14.12.2000) by S.I. 2000/3253, arts. 1(1)(2), 2, Sch. 1 para. 4(1) (with art. 6)

C55 S. 42: functions transferred to the Scottish Ministers (S.) (15.12.2000) by virtue of S.I. 2000/3253, arts. 1(1)(3), 3, Sch. 2 (with art. 6)

Marginal Citations

M39 1994 c. 13.

M40 1994 c. 13.

Grant, renewal and duration of authorisations U.K.

43 General rules about grant, renewal and duration. U.K.

(1) An authorisation under this Part—

(a) may be granted or renewed orally in any urgent case in which the entitlement to act of the person granting or renewing it is not confined to urgent cases; and

(b) in any other case, must be in writing.

[F273 (1A) Subsection (1)(a) does not apply in relation to an authorisation under section 28 or 29 to which section 32A applies.]

(2) A single authorisation may combine two or more different authorisations under this Part; but the provisions of this Act that are applicable in the case of each of the authorisations shall apply separately in relation to the part of the combined authorisation to which they are applicable.

(3) Subject to subsections (4) and (8), an authorisation under this Part shall cease to have effect at the end of the following period—

(a) in the case of an authorisation which—

(i) has not been renewed and was granted either orally or by a person whose entitlement to act is confined to urgent cases, or

(ii) was last renewed either orally or by such a person,

the period of seventy-two hours beginning with the time when the grant of the authorisation or, as the case may be, its latest renewal takes effect;

(b) in a case not falling within paragraph (a) in which the authorisation is for the conduct or the use of a covert human intelligence source, the period of twelve months beginning with the day on which the grant of the authorisation or, as the case may be, its latest renewal takes effect; and

(c) in any case not falling within paragraph (a) or (b), the period of three months beginning with the day on which the grant of the authorisation or, as the case may be, its latest renewal takes effect.

(4) Subject to subsection (6), an authorisation under this Part may be renewed, at any time before the time at which it ceases to have effect, by any person who would be entitled to grant a new authorisation in the same terms.

(5) Sections 28 to 41 shall have effect in relation to the renewal of an authorisation under this Part as if references to the grant of an authorisation included references to its renewal.

(6) A person shall not renew an authorisation for the conduct or the use of a covert human intelligence source, unless he—

(a) is satisfied that a review has been carried out of the matters mentioned in subsection (7); and

(b) has, for the purpose of deciding whether he should renew the authorisation, considered the results of that review.

[F274 (6A) The relevant judicial authority (within the meaning given by subsection (7) of section 32A) shall not make an order under that section approving the renewal of an authorisation for the conduct or the use of a covert human intelligence source unless the relevant judicial authority—

(a) is satisfied that a review has been carried out of the matters mentioned in subsection (7) below, and

(b) has, for the purpose of deciding whether to make the order, considered the results of that review.]

(7) The matters mentioned in [F275 subsections (6) and (6A)] are—

(a) the use made of the source in the period since the grant or, as the case may be, latest renewal of the authorisation; and

(b) the tasks given to the source during that period and the information obtained from the conduct or the use of the source.

(8) The Secretary of State may by order provide in relation to authorisations of such descriptions as may be specified in the order that subsection (3) is to have effect as if the period at the end of which an authorisation of a description so specified is to cease to have effect were such period shorter than that provided for by that subsection as may be fixed by or determined in accordance with that order.

(9) References in this section to the time at which, or the day on which, the grant or renewal of an authorisation takes effect are references—

(a) in the case of the grant of an authorisation to which paragraph (c) does not apply, to the time at which or, as the case may be, day on which the authorisation is granted;

(b) in the case of the renewal of an authorisation to which paragraph (c) does not apply, to the time at which or, as the case may be, day on which the authorisation would have ceased to have effect but for the renewal; and

(c) in the case of any grant or renewal that takes effect under subsection (2) of section [F276 32A or] 36 at a time or on a day later than that given by paragraph (a) or (b), to the time at which or, as the case may be, day on which the grant or renewal takes effect in accordance with that subsection.

(10) In relation to any authorisation granted by a member of any of the intelligence services, and in relation to any authorisation contained in a warrant issued by the Secretary of State on the application of a member of any of the intelligence services, this section has effect subject to the provisions of section 44.

Textual Amendments

F273 S. 43(1A) inserted (1.11.2012) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 9 para. 9(2) (with s. 97); S.I. 2012/2075, art. 4(d)

F274 S. 43(6A) inserted (1.11.2012) by Protection of Freedoms Act 2012 (c. 9), ss. 38(2)(a), 120 (with s. 97); S.I. 2012/2075, art. 4(b) (with art. 6)

F275 Words in s. 43(7) substituted (1.11.2012) by Protection of Freedoms Act 2012 (c. 9), ss. 38(2)(b), 120 (with s. 97); S.I. 2012/2075, art. 4(b) (with art. 6)

F276 Words in s. 43(9)(c) inserted (1.11.2012) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 9 para. 9(3) (with s. 97); S.I. 2012/2075, art. 4(d)

Modifications etc. (not altering text)

C56 S. 43(3) modified (6.11.2000) by S.I. 2000/2793, art. 6 (as amended (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), ss. 2(7), 9(2) (with s. 2(9)); S.I. 2021/605, reg. 2(a)(b)(c))

S.43 applied (with modifications) (16.3.2001) by S.I. 2001/1057, art. 4

C57 S. 43(3) modified (1.2.2010) by The Regulation of Investigatory Powers (Covert Human Intelligence Sources: Matters Subject to Legal Privilege) Order 2009 (S.I. 2009/3404), art. 8

C58 S. 43(3) modified (18.2.2010) by The Regulation of Investigatory Powers (Covert Human Intelligence Sources: Matters Subject to Legal Privilege) Order 2010 (S.I. 2010/123), art. 8

C59 S. 43(3) modified (1.1.2014) by The Regulation of Investigatory Powers (Covert Human Intelligence Sources: Relevant Sources) Order 2013 (S.I. 2013/2788), arts. 1, 3 (with art. 17)

44 Special rules for intelligence services authorisations. U.K.

(1) Subject to subsection (2), a warrant containing an authorisation for the carrying out of intrusive surveillance—

(a) shall not be issued on the application of a member of any of the intelligence services, and

(b) if so issued shall not be renewed,

except under the hand of the Secretary of State [F277 or, in the case of a warrant issued by the Scottish Ministers(by virtue of provision made under section 63 of the Scotland Act 1998), a member of the Scottish Executive.]

(2) In an urgent case in which—

(a) an application for a warrant containing an authorisation for the carrying out of intrusive surveillance has been made by a member of any of the intelligence services, and

(b) the Secretary of State has himself [F278 or the Scottish Ministers(by virtue of provision made under section 63 of the Scotland Act 1998) have themselves] expressly authorised the issue of the warrant in that case,

the warrant may be issued (but not renewed) under the hand of a senior official [F279 or as the case may be, a member of the staffof the Scottish Administration who is a member of the Senior Civil Service and is designated by the Scottish Ministers as a person under whose hand a warrant may be issued in such a case (in this section referred to as “a designated official”)]

(3) Subject to subsection (6), a warrant containing an authorisation for the carrying out of intrusive surveillance which—

(a) was issued, on the application of a member of any of the intelligence services, under the hand of a senior official [F280 or, as the case may be, a designated official] and

(b) has not been renewed under the hand of the Secretary of State [F281 or, in the case of a warrant issued by the Scottish Ministers (by virtue of provision made under section 3 of the Scotalnd Act 1998), a member of the Scottish Executive],

shall cease to have effect at the end of the second working day following the day of the issue of the warrant, instead of at the time provided for by section 43(3).

(4) Subject to subsections (3) and (6), where any warrant for the carrying out of intrusive surveillance which is issued or was last renewed on the application of a member of any of the intelligence services, the warrant (unless renewed or, as the case may be, renewed again) shall cease to have effect at the following time, instead of at the time provided for by section 43(3), namely—

(a) in the case of a warrant that has not been renewed, at the end of the period of six months beginning with the day on which it was issued; and

(b) in any other case, at the end of the period of six months beginning with the day on which it would have ceased to have effect if not renewed again.

(5) Subject to subsection (6), where—

(a) an authorisation for the carrying out of directed surveillance is granted by a member of any of the intelligence services, and

(b) the authorisation is renewed by an instrument endorsed under the hand of the person renewing the authorisation with a statement that the renewal is believed to be necessary on grounds falling within section 32(3)(a) or (c),

the authorisation (unless renewed again) shall cease to have effect at the end of the period of six months beginning with the day on which it would have ceased to have effect but for the renewal, instead of at the time provided for by section 43(3).

(6) The Secretary of State may by order provide in relation to authorisations of such descriptions as may be specified in the order that subsection (3), (4) or (5) is to have effect as if the period at the end of which an authorisation of a description so specified is to cease to have effect were such period shorter than that provided for by that subsection as may be fixed by or determined in accordance with that order.

(7) Notwithstanding anything in section 43(2), in a case in which there is a combined warrant containing both—

(a) an authorisation for the carrying out of intrusive surveillance, and

(b) an authorisation for the carrying out of directed surveillance,

the reference in subsection (4) of this section to a warrant for the carrying out of intrusive surveillance is a reference to the warrant so far as it confers both authorisations.

Textual Amendments

F277 Words in s. 44(1) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 8(a) (with art. 6)

F278 Words in s. 44(2) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 8(b)(i) (with art. 6)

F279 Words inserted at the end of s. 44(2) (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 8(b)(ii) (with art. 6)

F280 Words in s. 44(3)(a) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 8(c)(i) (with art. 6)

F281 Words in s. 44(3)(b) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 8(c)(ii) (with art. 6)

Modifications etc. (not altering text)

C60 S. 44 excluded by 2016 c. 25, Sch. 8 para. 27(4) (as inserted (26.7.2018) by The Investigatory Powers (Codes of Practice and Miscellaneous Amendments) Order 2018 (S.I. 2018/905), arts. 1(3), 6)

C61 S. 44(1)(2)(b) modified (S.) (14.12.2000) by S.I. 2000/3253, arts. 1(1)(2), 2, Sch. 1 para. 5 (with art. 6)

C62 S. 44(1)(2)(b): functions transferred to the Scottish Ministers (S.) (15.12.2000) by virtue of S.I. 2000/3253, arts. 1(1)(3), 3, Sch. 2 (with art. 6)

45 Cancellation of authorisations. U.K.

(1) The person who granted or, as the case may be, last renewed an authorisation under this Part shall cancel it if—

(a) he is satisfied that the authorisation is one in relation to which the requirements of section 28(2)(a) and (b), 29(2)(a) and (b) or, as the case may be, 32(2)(a) and (b) are no longer satisfied; or

(b) in the case of an authorisation under section 29, he is satisfied that arrangements for the source’s case that satisfy the requirements mentioned in subsection (2)(c) of that section no longer exist.

(2) Where an authorisation under this Part was granted or, as the case may be, last renewed—

(a) by a person entitled to act for any other person, or

(b) by the deputy of any other person,

that other person shall cancel the authorisation if he is satisfied as to either of the matters mentioned in subsection (1).

(3) Where an authorisation under this Part was granted or, as the case may be, last renewed by a person whose deputy had power to grant it, that deputy shall cancel the authorisation if he is satisfied as to either of the matters mentioned in subsection (1).

(4) The Secretary of State may by regulations provide for the person by whom any duty imposed by this section is to be performed in a case in which it would otherwise fall on a person who is no longer available to perform it.

(5) Regulations under subsection (4) may provide for the person on whom the duty is to fall to be a person appointed in accordance with the regulations.

(6) The references in this section to a person’s deputy are references to the following—

(a) in relation to—

(i) a chief constable of a police force maintained under section 2 of the M41 Police Act 1996,

(ii) the Commissioner of Police for the City of London, or

[F282 (iii) the chief constable of the Police Service of Scotland,]

to his designated deputy;

(b) in relation to the Commissioner of Police of the Metropolis, to an Assistant Commissioner of Police of the Metropolis; F283 . . . [F284 and]

(c) in relation to the Chief Constable of the Royal Ulster Constabulary, to the Deputy Chief Constable of the Royal Ulster Constabulary; F285 ...

F285 (ca) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) F286 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) F286 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) In this section “designated deputy” has the same meaning as in section 34.

Textual Amendments

F282 S. 45(6)(a)(iii) substituted (1.4.2013) by The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(14)(a)

F283 Word in s. 45(6)(b) omitted (1.4.2007) by virtue of The Police, Public Order and Criminal Justice (Scotland) Act 2006 (Consequential Provisions and Modifications) Order 2007 (S.I. 2007/1098), arts. 1(3), 6, Sch. para. 4(7)(a)

F284 Word in s. 45(6) inserted (1.4.2013) by The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(14)(b)

F285 S. 45(6)(ca) and word omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(14)(c)

F286 S. 45(6)(d)(e) repealed (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 174, 178, Sch. 4 para. 143(b), Sch. 17; S.I. 2006/378, art. 4(1), Sch. paras. 10, 13(hh) (subject to art. 4(2)-(7))

Modifications etc. (not altering text)

C63 S. 45 applied (with modifications) (16.3.2001) by S.I. 2001/1057, art. 5

C64 S. 45(1): functions transferred to the Scottish Ministers (15.12.2000) by virtue of S.I. 2000/3253, arts. 1(1)(3), 3, Sch. 2 (with art. 6)

C65 S. 45(1)(a) modified (S.) (14.12.2000) by S.I. 2000/3253, arts. 1(1), 2, Sch. 1 para. 5 (with art. 6)

Marginal Citations

M41 1996 c. 16.

Scotland U.K.

46 Restrictions on authorisations extending to Scotland. U.K.

(1) No person shall grant or renew an authorisation under this Part for the carrying out of any conduct if it appears to him—

(a) that the authorisation is not one for which this Part is the relevant statutory provision for all parts of the United Kingdom; and

(b) that all the conduct authorised by the grant or, as the case may be, renewal of the authorisation is likely to take place in Scotland.

(2) In relation to any authorisation, this Part is the relevant statutory provision for all parts of the United Kingdom in so far as it—

(a) is granted or renewed on the grounds that it is necessary in the interests of national security or in the interests of the economic well-being of the United Kingdom;

(b) is granted or renewed by or on the application of a person holding any office, rank or position with any of the public authorities specified in subsection (3);

(c) authorises conduct of a person holding an office, rank or position with any of the public authorities so specified;

(d) authorises conduct of an individual acting as a covert human intelligence source for the benefit of any of the public authorities so specified; or

(e) authorises conduct that is surveillance by virtue of section 48(4).

[F287 (ea) the department of the Secretary of State by whom functions relating to immigration are exercisable; and]

(3) The public authorities mentioned in subsection (2) are—

(a) each of the intelligence services;

(b) Her Majesty’s forces;

(c) the Ministry of Defence;

(d) the Ministry of Defence Police;

[F288 (dza) the Civil Nuclear Constabulary;]

[F289 (da) the CMA;]

[F290 (db) the National Crime Agency;]

[F291 (e) the Commissioners for Her Majesty's Revenue F292 ... Customs;]

(f) the British Transport Police.

(4) For the purposes of so much of this Part as has effect in relation to any other public authority by virtue of—

(a) the fact that it is a public authority for the time being specified in Schedule 1, or

(b) an order under subsection (1)(d) of section 41 designating that authority for the purposes of that section,

the authorities specified in subsection (3) of this section shall be treated as including that authority to the extent that the Secretary of State by order directs that the authority is a relevant public authority or, as the case may be, is a designated authority for all parts of the United Kingdom.

Textual Amendments

F287 S. 46(3)(ea) inserted (25.6.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 21 para. 13(b) (with Sch. 21 para. 40); S.I. 2013/1042, art. 4(i)

F288 S. 46(3)(dza) inserted (1.4.2005) by Energy Act 2004 (c. 20), ss. 69, 198(2), Sch. 14 para. 8(1); S.I. 2005/877, art. 2(1), Sch. 1

F289 S. 46(3)(da) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 141 (with art. 3)

F290 S. 46(3)(db) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 89; S.I. 2013/1682, art. 3(v)

F291 S. 46(3)(e) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 17; S.I. 2008/219, art. 2(b)

F292 Word in s. 46(3)(e) omitted (25.6.2013) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 21 para. 13(a) (with Sch. 21 para. 40); S.I. 2013/1042, art. 4(i)

Supplemental provision for Part II U.K.

47 Power to extend or modify authorisation provisions. U.K.

(1) The Secretary of State may by order do one or both of the following—

(a) apply this Part, with such modifications as he thinks fit, to any such surveillance that is neither directed nor intrusive as may be described in the order;

(b) provide for any description of directed surveillance to be treated for the purposes of this Part as intrusive surveillance.

(2) No order shall be made under this section unless a draft of it has been laid before Parliament and approved by a resolution of each House.

48 Interpretation of Part II. U.K.

(1) In this Part—

• [F293 “CMA” means the Competition and Markets Authority;]

• “covert human intelligence source” shall be construed in accordance with section 26(8);

• “directed” and “intrusive”, in relation to surveillance, shall be construed in accordance with section 26(2) to (6);

• F294 ...

• “private vehicle” means (subject to subsection (7)(a)) any vehicle which is used primarily for the private purposes of the person who owns it or of a person otherwise having the right to use it;

• “residential premises” means (subject to subsection (7)(b)) so much of any premises as is for the time being occupied or used by any person, however temporarily, for residential purposes or otherwise as living accommodation (including hotel or prison accommodation that is so occupied or used);

• “senior authorising officer” means a person who by virtue of subsection (6) of section 32 is a senior authorising officer for the purposes of that section;

• “surveillance” shall be construed in accordance with subsections (2) to (4);

• “surveillance device” means any apparatus designed or adapted for use in surveillance.

(2) Subject to subsection (3), in this Part “surveillance” includes—

(a) monitoring, observing or listening to persons, their movements, their conversations or their other activities or communications;

(b) recording anything monitored, observed or listened to in the course of surveillance; and

(c) surveillance by or with the assistance of a surveillance device.

(3) References in this Part to surveillance do not include references to—

(a) any conduct of a covert human intelligence source for obtaining or recording (whether or not using a surveillance device) any information which is disclosed in the presence of the source;

(b) the use of a covert human intelligence source for so obtaining or recording information; or

(c) any such entry on or interference with property or with wireless telegraphy as would be unlawful unless authorised under—

(i) section 5 of the M42 Intelligence Services Act 1994 (warrants for the intelligence services); F295 ...

(ii) Part III of the M43 Police Act 1997 (powers of the police and of [F296 officers of Revenue and Customs)][F297 ; or

(iii) Part 5, or Chapter 3 of Part 6, of the Investigatory Powers Act 2016 (equipment interference).]

(4) References in this Part to surveillance include references to the interception of a communication in the course of its transmission by means of a postal service or telecommunication system if, and only if—

(a) the communication is one sent by or intended for a person who has consented to the interception of communications sent by or to him; and

(b) there is no interception warrant authorising the interception.

(5) References in this Part to an individual holding an office or position with a public authority include references to any member, official or employee of that authority.

(6) For the purposes of this Part the activities of a covert human intelligence source which are to be taken as activities for the benefit of a particular public authority include any conduct of his as such a source which is in response to inducements or requests made by or on behalf of that authority.

(7) In subsection (1)—

(a) the reference to a person having the right to use a vehicle does not, in relation to a motor vehicle, include a reference to a person whose right to use the vehicle derives only from his having paid, or undertaken to pay, for the use of the vehicle and its driver for a particular journey; and

(b) the reference to premises occupied or used by any person for residential purposes or otherwise as living accommodation does not include a reference to so much of any premises as constitutes any common area to which he has or is allowed access in connection with his use or occupation of any accommodation.

(8) In this section—

• “premises” includes any vehicle or moveable structure and any other place whatever, whether or not occupied as land;

• “vehicle” includes any vessel, aircraft or hovercraft.

Textual Amendments

F293 Definition in s. 48 inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 142(b) (with art. 3)

F294 Definition in s. 48 omitted (1.4.2014) by virtue of The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 142(a) (with art. 3)

F295 Word in s. 48(3)(c)(i) omitted (27.6.2018) by virtue of Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 65(a) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/652, reg. 12(g)(iii)

F296 Words in s. 48(3)(c)(ii) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 18; S.I. 2008/219, art. 2(b)

F297 S. 48(3)(c)(iii) and word inserted (27.6.2018) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 65(b) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/652, reg. 12(g)(iii)

Modifications etc. (not altering text)

C66 S. 48(1) modified (temp.) (29.5.2018) by The Investigatory Powers Act 2016 (Commencement No. 5 and Transitional and Saving Provisions) Regulations 2018 (S.I. 2018/652), reg. 19(5)

Marginal Citations

M42 1994 c. 13.

M43 1997 c. 50.

Part III U.K. Investigation of electronic data protected by encryption etc.

Power to require disclosure U.K.

49 Notices requiring disclosure. U.K.

(1) This section applies where any protected information—

(a) has come into the possession of any person by means of the exercise of a statutory power to seize, detain, inspect, search or otherwise to interfere with documents or other property, or is likely to do so;

(b) has come into the possession of any person by means of the exercise of any statutory power to intercept communications [F298 or obtain secondary data from communications], or is likely to do so;

(c) has come into the possession of any person by means of the exercise of any power conferred by an authorisation under section 22(3) [F299 or (3B)] or under Part II, or as a result of the giving of a notice under section 22(4), or is likely to do so;

(d) has come into the possession of any person as a result of having been provided or disclosed in pursuance of any statutory duty (whether or not one arising as a result of a request for information), or is likely to do so; or

(e) has, by any other lawful means not involving the exercise of statutory powers, come into the possession of any of the intelligence services, the police, [F300 the National Crime Agency] F301 ... or [F302 Her Majesty's Revenue and Customs], or is likely so to come into the possession of any of those services, the police, [F300 the National Crime Agency] F301 ... or [F302 Her Majesty's Revenue and Customs].

(2) If any person with the appropriate permission under Schedule 2 believes, on reasonable grounds—

(a) that a key to the protected information is in the possession of any person,

(b) that the imposition of a disclosure requirement in respect of the protected information is—

(i) necessary on grounds falling within subsection (3), or

(ii) necessary for the purpose of securing the effective exercise or proper performance by any public authority of any statutory power or statutory duty,

(c) that the imposition of such a requirement is proportionate to what is sought to be achieved by its imposition, and

(d) that it is not reasonably practicable for the person with the appropriate permission to obtain possession of the protected information in an intelligible form without the giving of a notice under this section,

the person with that permission may, by notice to the person whom he believes to have possession of the key, impose a disclosure requirement in respect of the protected information.

(3) A disclosure requirement in respect of any protected information is necessary on grounds falling within this subsection if it is necessary—

(a) in the interests of national security;

(b) for the purpose of preventing or detecting crime; or

(c) in the interests of the economic well-being of the United Kingdom.

(4) A notice under this section imposing a disclosure requirement in respect of any protected information—

(a) must be given in writing or (if not in writing) must be given in a manner that produces a record of its having been given;

(b) must describe the protected information to which the notice relates;

(c) must specify the matters falling within subsection (2)(b)(i) or (ii) by reference to which the notice is given;

(d) must specify the office, rank or position held by the person giving it;

(e) must specify the office, rank or position of the person who for the purposes of Schedule 2 granted permission for the giving of the notice or (if the person giving the notice was entitled to give it without another person’s permission) must set out the circumstances in which that entitlement arose;

(f) must specify the time by which the notice is to be complied with; and

(g) must set out the disclosure that is required by the notice and the form and manner in which it is to be made;

and the time specified for the purposes of paragraph (f) must allow a period for compliance which is reasonable in all the circumstances.

(5) Where it appears to a person with the appropriate permission—

(a) that more than one person is in possession of the key to any protected information,

(b) that any of those persons is in possession of that key in his capacity as an officer or employee of any body corporate, and

(c) that another of those persons is the body corporate itself or another officer or employee of the body corporate,

a notice under this section shall not be given, by reference to his possession of the key, to any officer or employee of the body corporate unless he is a senior officer of the body corporate or it appears to the person giving the notice that there is no senior officer of the body corporate and (in the case of an employee) no more senior employee of the body corporate to whom it is reasonably practicable to give the notice.

(6) Where it appears to a person with the appropriate permission—

(a)that more than one person is in possession of the key to any protected information,

(b) that any of those persons is in possession of that key in his capacity as an employee of a firm, and

(c) that another of those persons is the firm itself or a partner of the firm,

a notice under this section shall not be given, by reference to his possession of the key, to any employee of the firm unless it appears to the person giving the notice that there is neither a partner of the firm nor a more senior employee of the firm to whom it is reasonably practicable to give the notice.

(7) Subsections (5) and (6) shall not apply to the extent that there are special circumstances of the case that mean that the purposes for which the notice is given would be defeated, in whole or in part, if the notice were given to the person to whom it would otherwise be required to be given by those subsections.

(8) A notice under this section shall not require the making of any disclosure to any person other than—

(a) the person giving the notice; or

(b) such other person as may be specified in or otherwise identified by, or in accordance with, the provisions of the notice.

(9) A notice under this section shall not require the disclosure of any key which—

(a) is intended to be used for the purpose only of generating electronic signatures; and

(b) has not in fact been used for any other purpose.

[F303 (9A) In subsection (1)(b) the reference to obtaining secondary data from communications is to be read in accordance with section 16 of the Investigatory Powers Act 2016.]

(10) In this section “senior officer”, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body corporate; and for this purpose “director”, in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.

(11) Schedule 2 (definition of the appropriate permission) shall have effect.

Textual Amendments

F298 Words in s. 49(1)(b) inserted (30.8.2018) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 46(2) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/940, reg. 2(1)(h)(i) (with reg. 2(2))

F299 Words in s. 49(1)(c) substituted (1.4.2013) by The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(15)(a)

F300 Words in s. 49(1)(e) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 90; S.I. 2013/1682, art. 3(v)

F301 Word in s. 49(1)(e) omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(15)(b)

F302 Words in s. 49(1)(e) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 19; S.I. 2008/219, art. 2(b)

F303 S. 49(9A) inserted (30.8.2018) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 46(3) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/940, reg. 2(1)(h)(i) (with reg. 2(2))

Modifications etc. (not altering text)

C67 S. 49(1)(e) restricted (18.4.2005) by Commissioners for Revenue and Customs Act 2005 (c. 11), ss. 16, 17, 53(1), Sch. 2 Pt. 1 para. 11(2)(c); S.I. 2005/1126, art. 2(2)(d)

50 Effect of notice imposing disclosure requirement. U.K.

(1) Subject to the following provisions of this section, the effect of a section 49 notice imposing a disclosure requirement in respect of any protected information on a person who is in possession at a relevant time of both the protected information and a means of obtaining access to the information and of disclosing it in an intelligible form is that he—

(a) shall be entitled to use any key in his possession to obtain access to the information or to put it into an intelligible form; and

(b) shall be required, in accordance with the notice imposing the requirement, to make a disclosure of the information in an intelligible form.

(2) A person subject to a requirement under subsection (1)(b) to make a disclosure of any information in an intelligible form shall be taken to have complied with that requirement if—

(a) he makes, instead, a disclosure of any key to the protected information that is in his possession; and

(b) that disclosure is made, in accordance with the notice imposing the requirement, to the person to whom, and by the time by which, he was required to provide the information in that form.

(3) Where, in a case in which a disclosure requirement in respect of any protected information is imposed on any person by a section 49 notice—

(a) that person is not in possession of the information,

(b) that person is incapable, without the use of a key that is not in his possession, of obtaining access to the information and of disclosing it in an intelligible form, or

(c) the notice states, in pursuance of a direction under section 51, that it can be complied with only by the disclosure of a key to the information,

the effect of imposing that disclosure requirement on that person is that he shall be required, in accordance with the notice imposing the requirement, to make a disclosure of any key to the protected information that is in his possession at a relevant time.

(4) Subsections (5) to (7) apply where a person (“the person given notice”)—

(a) is entitled or obliged to disclose a key to protected information for the purpose of complying with any disclosure requirement imposed by a section 49 notice; and

(b) is in possession of more than one key to that information.

(5) It shall not be necessary, for the purpose of complying with the requirement, for the person given notice to make a disclosure of any keys in addition to those the disclosure of which is, alone, sufficient to enable the person to whom they are disclosed to obtain access to the information and to put it into an intelligible form.

(6) Where—

(a) subsection (5) allows the person given notice to comply with a requirement without disclosing all of the keys in his possession, and

(b) there are different keys, or combinations of keys, in the possession of that person the disclosure of which would, under that subsection, constitute compliance,

the person given notice may select which of the keys, or combination of keys, to disclose for the purpose of complying with that requirement in accordance with that subsection.

(7) Subject to subsections (5) and (6), the person given notice shall not be taken to have complied with the disclosure requirement by the disclosure of a key unless he has disclosed every key to the protected information that is in his possession at a relevant time.

(8) Where, in a case in which a disclosure requirement in respect of any protected information is imposed on any person by a section 49 notice—

(a) that person has been in possession of the key to that information but is no longer in possession of it,

(b) if he had continued to have the key in his possession, he would have been required by virtue of the giving of the notice to disclose it, and

(c) he is in possession, at a relevant time, of information to which subsection (9) applies,

the effect of imposing that disclosure requirement on that person is that he shall be required, in accordance with the notice imposing the requirement, to disclose all such information to which subsection (9) applies as is in his possession and as he may be required, in accordance with that notice, to disclose by the person to whom he would have been required to disclose the key.

(9) This subsection applies to any information that would facilitate the obtaining or discovery of the key or the putting of the protected information into an intelligible form.

(10) In this section “relevant time”, in relation to a disclosure requirement imposed by a section 49 notice, means the time of the giving of the notice or any subsequent time before the time by which the requirement falls to be complied with.

51 Cases in which key required. U.K.

(1) A section 49 notice imposing a disclosure requirement in respect of any protected information shall not contain a statement for the purposes of section 50(3)(c) unless—

(a) the person who for the purposes of Schedule 2 granted the permission for the giving of the notice in relation to that information, or

(b) any person whose permission for the giving of a such a notice in relation to that information would constitute the appropriate permission under that Schedule,

has given a direction that the requirement can be complied with only by the disclosure of the key itself.

(2) A direction for the purposes of subsection (1) by [F304 the police, [F305 the National Crime Agency], F306 ...,] [F307 Her Majesty's Revenue and Customs] or a member of Her Majesty’s forces shall not be given—

(a) in the case of a direction by the police or by a member of Her Majesty’s forces who is a member of a police force, except by or with the permission of a chief officer of police;

[F308 (aa) in the case of a direction by [F309 the National Crime Agency], except by or with the permission of the [F310 Director General of the National Crime Agency];]

F311 (ab) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) in the case of a direction by [F307 Her Majesty's Revenue and Customs], except by or with the permission of [F312 the Commissioners for Her Majesty's Revenue and Customs]; or

(c) in the case of a direction by a member of Her Majesty’s forces who is not a member of a police force, except by or with the permission of a person of or above the rank of brigadier or its equivalent.

(3) A permission given for the purposes of subsection (2) by a chief officer of police, [F313 the [F314 Director General of the National Crime Agency],] F315 ... [F312 the Commissioners for Her Majesty's Revenue and Customs] or a person of or above any such rank as is mentioned in paragraph (c) of that subsection must be given expressly in relation to the direction in question.

(4) A person shall not give a direction for the purposes of subsection (1) unless he believes—

(a) that there are special circumstances of the case which mean that the purposes for which it was believed necessary to impose the requirement in question would be defeated, in whole or in part, if the direction were not given; and

(b) that the giving of the direction is proportionate to what is sought to be achieved by prohibiting any compliance with the requirement in question otherwise than by the disclosure of the key itself.

(5) The matters to be taken into account in considering whether the requirement of subsection (4)(b) is satisfied in the case of any direction shall include—

(a) the extent and nature of any protected information, in addition to the protected information in respect of which the disclosure requirement is imposed, to which the key is also a key; and

(b) any adverse effect that the giving of the direction might have on a business carried on by the person on whom the disclosure requirement is imposed.

(6) Where a direction for the purposes of subsection (1) is given by a chief officer of police, [F316 by the [F317 Director General of the National Crime Agency],] F318 ... by [F312 the Commissioners for Her Majesty's Revenue and Customs] or by a member of Her Majesty’s forces, the person giving the direction shall give a notification that he has [F319 done so to the Investigatory Powers Commissioner].

(7) A notification under subsection (6)—

(a) must be given not more than seven days after the day of the giving of the direction to which it relates; and

(b) may be given either in writing or by being transmitted to [F320 the Investigatory Powers Commissioner] by electronic means.

Textual Amendments

F304 Words in s. 51(2) substituted (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 178, Sch. 4 para. 146(2)(a); S.I. 2006/378, art. 4(1), Sch. para. 10 (subject to art. 4(2)-(7))

F305 Words in s. 51(2) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 91(2)(a); S.I. 2013/1682, art. 3(v)

F306 Word in s. 51(2) omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(16)(a)(i)

F307 Words in s. 51 substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 20(a); S.I. 2008/219, art. 2(b)

F308 S. 51(2)(aa) inserted (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 178, Sch. 4 para. 146(2)(b); S.I. 2006/378, art. 4(1), Sch. para. 10 (subject to art. 4(2)-(7))

F309 Words in s. 51(2)(aa) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 91(2)(b)(i); S.I. 2013/1682, art. 3(v)

F310 Words in s. 51(2)(aa) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 91(2)(b)(ii); S.I. 2013/1682, art. 3(v)

F311 S. 51(2)(ab) omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(16)(a)(ii)

F312 Words in s. 51 substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 20(b); S.I. 2008/219, art. 2(b)

F313 Words in s. 51(3) inserted (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 178, Sch. 4 para. 146(3); S.I. 2006/378, art. 4(1), Sch. para. 10 (subject to art. 4(2)-(7))

F314 Words in s. 51(3) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 91(3); S.I. 2013/1682, art. 3(v)

F315 Words in s. 51(3) omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(16)(b)

F316 Words in s. 51(6) inserted (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 178, Sch. 4 para. 146(4); S.I. 2006/378, art. 4(1), Sch. para. 10 (subject to art. 4(2)-(7))

F317 Words in s. 51(6) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 91(3); S.I. 2013/1682, art. 3(v)

F318 Words in s. 51(6) omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(16)(c)

F319 Words in s. 51(6) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(4)(a), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F320 Words in s. 51(7)(b) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 79 (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(j)

Contributions to costs U.K.

52 Arrangements for payments for disclosure. U.K.

(1) It shall be the duty of the Secretary of State to ensure that such arrangements are in force as he thinks appropriate for requiring or authorising, in such cases as he thinks fit, the making to persons to whom section 49 notices are given of appropriate contributions towards the costs incurred by them in complying with such notices.

(2) For the purpose of complying with his duty under this section, the Secretary of State may make arrangements for payments to be made out of money provided by Parliament.

Offences U.K.

53 Failure to comply with a notice. U.K.

(1) A person to whom a section 49 notice has been given is guilty of an offence if he knowingly fails, in accordance with the notice, to make the disclosure required by virtue of the giving of the notice.

(2) In proceedings against any person for an offence under this section, if it is shown that that person was in possession of a key to any protected information at any time before the time of the giving of the section 49 notice, that person shall be taken for the purposes of those proceedings to have continued to be in possession of that key at all subsequent times, unless it is shown that the key was not in his possession after the giving of the notice and before the time by which he was required to disclose it.

(3) For the purposes of this section a person shall be taken to have shown that he was not in possession of a key to protected information at a particular time if—

(a) sufficient evidence of that fact is adduced to raise an issue with respect to it; and

(b) the contrary is not proved beyond a reasonable doubt.

(4) In proceedings against any person for an offence under this section it shall be a defence for that person to show—

(a) that it was not reasonably practicable for him to make the disclosure required by virtue of the giving of the section 49 notice before the time by which he was required, in accordance with that notice, to make it; but

(b) that he did make that disclosure as soon after that time as it was reasonably practicable for him to do so.

(5) A person guilty of an offence under this section shall be liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding [F321 the appropriate maximum term] or to a fine, or to both;

(b) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.

[F322 (5A) In subsection (5) ‘the appropriate maximum term’ means—

(a) in a national security case [F323 or a child indecency case], five years; and

(b) in any other case, two years.

(5B) In subsection (5A) ‘a national security case’ means a case in which the grounds specified in the notice to which the offence relates as the grounds for imposing a disclosure requirement were or included a belief that the imposition of the requirement was necessary in the interests of national security.]

[F324 (6) In subsection (5A) “ a child indecency case ” means a case in which the grounds specified in the notice to which the offence relates as the grounds for imposing a disclosure requirement were or included a belief that the imposition of the requirement was necessary for the purpose of preventing or detecting an offence under any of the provisions listed in subsection (7).

(7) Those provisions are—

(a) section 1 of the Protection of Children Act 1978 (showing or taking etc an indecent photograph of a child: England and Wales);

(b) Article 3 of the Protection of Children (Northern Ireland) Order 1978 (S.I. 1978/1047 (N.I. 17)) (corresponding offence for Northern Ireland);

(c) section 52 or 52A of the Civic Government (Scotland) Act 1982 (showing or taking etc or possessing an indecent photograph of a child: Scotland);

(d) section 160 of the Criminal Justice Act 1988 (possessing an indecent photograph of a child: England and Wales);

(e) Article 15 of the Criminal Justice (Evidence, Etc.) (Northern Ireland) Order 1988 (S.I. 1988/1847 (N.I. 17)) (corresponding offence for Northern Ireland).]

Textual Amendments

F321 Words in s. 53(5)(a) substituted (13.4.2006) by Terrorism Act 2006 (c. 11), ss. 15(1)(a), 39(2) (with s. 15(3)); S.I. 2006/1013, art. 2(2)(a)

F322 S. 53(5A)(5B) inserted (13.4.2006) by Terrorism Act 2006 (c. 11), ss. 15(2), 39(2) (with s. 15(3)); S.I. 2006/1013, art. 2(2)(a)

F323 Words in s. 53(5A)(a) inserted (25.1.2010) by Policing and Crime Act 2009 (c. 26), ss. 26(2)(4), 116; S.I. 2009/3096, art. 3(e)

F324 S. 53(6)(7) inserted (25.1.2010) by Policing and Crime Act 2009 (c. 26), ss. 26(3)(4), 116; S.I. 2009/3096, art. 3(e)

54 Tipping-off. U.K.

(1) This section applies where a section 49 notice contains a provision requiring—

(a) the person to whom the notice is given, and

(b) every other person who becomes aware of it or of its contents,

to keep secret the giving of the notice, its contents and the things done in pursuance of it.

(2) A requirement to keep anything secret shall not be included in a section 49 notice except where—

(a) it is included with the consent of the person who for the purposes of Schedule 2 granted the permission for the giving of the notice; or

(b) the person who gives the notice is himself a person whose permission for the giving of such a notice in relation to the information in question would have constituted appropriate permission under that Schedule.

(3) A section 49 notice shall not contain a requirement to keep anything secret except where the protected information to which it relates—

(a) has come into the possession of the police, [F325 the National Crime Agency], F326 ... [F327 Her Majesty's Revenue and Customs] or any of the intelligence services, or

(b) is likely to come into the possession of the police, [F325 the National Crime Agency], F326 ... [F327 Her Majesty's Revenue and Customs] or any of the intelligence services,

by means which it is reasonable, in order to maintain the effectiveness of any investigation or operation or of investigatory techniques generally, or in the interests of the safety or well-being of any person, to keep secret from a particular person.

(4) A person who makes a disclosure to any other person of anything that he is required by a section 49 notice to keep secret shall be guilty of an offence and liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both;

(b) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.

(5) In proceedings against any person for an offence under this section in respect of any disclosure, it shall be a defence for that person to show that—

(a) the disclosure was effected entirely by the operation of software designed to indicate when a key to protected information has ceased to be secure; and

(b) that person could not reasonably have been expected to take steps, after being given the notice or (as the case may be) becoming aware of it or of its contents, to prevent the disclosure.

(6) In proceedings against any person for an offence under this section in respect of any disclosure, it shall be a defence for that person to show that—

(a) the disclosure was made by or to a professional legal adviser in connection with the giving, by the adviser to any client of his, of advice about the effect of provisions of this Part; and

(b) the person to whom or, as the case may be, by whom it was made was the client or a representative of the client.

(7) In proceedings against any person for an offence under this section in respect of any disclosure, it shall be a defence for that person to show that the disclosure was made by a legal adviser—

(a) in contemplation of, or in connection with, any legal proceedings; and

(b) for the purposes of those proceedings.

(8) Neither subsection (6) nor subsection (7) applies in the case of a disclosure made with a view to furthering any criminal purpose.

(9) In proceedings against any person for an offence under this section in respect of any disclosure, it shall be a defence for that person to show that the disclosure was confined to a disclosure made to a [F328 Judicial Commissioner ] or authorised—

(a) by such a Commissioner;

(b) by the terms of the notice;

(c) by or on behalf of the person who gave the notice; or

(d) by or on behalf of a person who—

(i) is in lawful possession of the protected information to which the notice relates; and

(ii) came into possession of that information as mentioned in section 49(1).

(10) In proceedings for an offence under this section against a person other than the person to whom the notice was given, it shall be a defence for the person against whom the proceedings are brought to show that he neither knew nor had reasonable grounds for suspecting that the notice contained a requirement to keep secret what was disclosed.

F329 (11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F325 Words in s. 54(3)(a)(b) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 92; S.I. 2013/1682, art. 3(v)

F326 Word in s. 54(3)(a)(b) omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(17)

F327 Word in s. 54(3) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 21; S.I. 2008/219, art. 2(b)

F328 Words in s. 54(9) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(4)(b), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F329 S. 54(11) omitted (1.9.2017) by virtue of Investigatory Powers Act 2016 (c. 25), ss. 233(4)(d), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

Modifications etc. (not altering text)

C68 S. 54 restricted (18.4.2005) by Commissioners for Revenue and Customs Act 2005 (c. 11), ss. 16, 17, 53(1), Sch. 2 Pt. 1 para. 11(2)(d); S.I. 2005/1126, art. 2(2)(d)

Safeguards U.K.

55 General duties of specified authorities. U.K.

(1) This section applies to—

(a) the Secretary of State and every other Minister of the Crown in charge of a government department;

(b) every chief officer of police;

[F330 (ba) the Director General of the National Crime Agency;]

F331 (bb) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F332 (c) the Commissioners for Her Majesty's Revenue and Customs;]

(d) every person whose officers or employees include persons with duties that involve the giving of section 49 notices.

(2) It shall be the duty of each of the persons to whom this section applies to ensure that such arrangements are in force, in relation to persons under his control who by virtue of this Part obtain possession of keys to protected information, as he considers necessary for securing—

(a) that a key disclosed in pursuance of a section 49 notice is used for obtaining access to, or putting into an intelligible form, only protected information in relation to which power to give such a notice was exercised or could have been exercised if the key had not already been disclosed;

(b) that the uses to which a key so disclosed is put are reasonable having regard both to the uses to which the person using the key is entitled to put any protected information to which it relates and to the other circumstances of the case;

(c) that, having regard to those matters, the use and any retention of the key are proportionate to what is sought to be achieved by its use or retention;

(d) that the requirements of subsection (3) are satisfied in relation to any key disclosed in pursuance of a section 49 notice;

(e) that, for the purpose of ensuring that those requirements are satisfied, any key so disclosed is stored, for so long as it is retained, in a secure manner;

(f) that all records of a key so disclosed (if not destroyed earlier) are destroyed as soon as the key is no longer needed for the purpose of enabling protected information to be put into an intelligible form.

(3) The requirements of this subsection are satisfied in relation to any key disclosed in pursuance of a section 49 notice if—

(a) the number of persons to whom the key is disclosed or otherwise made available, and

(b) the number of copies made of the key,

are each limited to the minimum that is necessary for the purpose of enabling protected information to be put into an intelligible form.

[F333 (3A) The power of the Director General of the National Crime Agency to delegate functions under paragraph 10 of Schedule 1 to the Crime and Courts Act 2013 does not apply in relation to the Director General's duties under this section.]

F334 (3B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) Subject to subsection (5), where any relevant person incurs any loss or damage in consequence of—

(a) any breach by a person to whom this section applies of the duty imposed on him by subsection (2), or

(b) any contravention by any person whatever of arrangements made in pursuance of that subsection in relation to persons under the control of a person to whom this section applies,

the breach or contravention shall be actionable against the person to whom this section applies at the suit or instance of the relevant person.

(5) A person is a relevant person for the purposes of subsection (4) if he is—

(a) a person who has made a disclosure in pursuance of a section 49 notice; or

(b) a person whose protected information or key has been disclosed in pursuance of such a notice;

and loss or damage shall be taken into account for the purposes of that subsection to the extent only that it relates to the disclosure of particular protected information or a particular key which, in the case of a person falling with paragraph (b), must be his information or key.

(6) For the purposes of subsection (5)—

(a) information belongs to a person if he has any right that would be infringed by an unauthorised disclosure of the information; and

(b) a key belongs to a person if it is a key to information that belongs to him or he has any right that would be infringed by an unauthorised disclosure of the key.

(7) In any proceedings brought by virtue of subsection (4), it shall be the duty of the court to have regard to any opinion with respect to the matters to which the proceedings relate that is or has been given by a [F335 Judicial Commissioner or the Investigatory Powers Commissioner for Northern Ireland ] .

F336 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F330 S. 55(1)(ba) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 93(2); S.I. 2013/1682, art. 3(v)

F331 S. 55(1)(bb) omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(18)(a)

F332 S. 55(1)(c) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 22; S.I. 2008/219, art. 2(b)

F333 S. 55(3A) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 93(3); S.I. 2013/1682, art. 3(v)

F334 S. 55(3B) omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(18)(b)

F335 Words in s. 55(7) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(4)(c), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F336 S. 55(8) omitted (1.9.2017) by virtue of Investigatory Powers Act 2016 (c. 25), ss. 233(4)(d), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

Interpretation of Part III U.K.

56 Interpretation of Part III. U.K.

(1) In this Part—

• “chief officer of police” means any of the following—

  (a)

  the chief constable of a police force maintained under or by virtue of section 2 of the M44 Police Act 1996 F337 ...;

  (b)

  the Commissioner of Police of the Metropolis;

  (c)

  the Commissioner of Police for the City of London;

  (ca)

  [F338 the chief constable of the Police Service of Scotland;]

  (d)

  the Chief Constable of the Royal Ulster Constabulary;

  (e)

  the Chief Constable of the Ministry of Defence Police;

  (f)

  the Provost Marshal of the [F339 Royal Navy Police];

  (g)

  the Provost Marshal of the Royal Military Police;

  (h)

  the Provost Marshal of the Royal Air Force Police;

  (i)

  the Chief Constable of the British Transport Police;

  (j)

  F340 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  (k)

  F340 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• F341 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• “electronic signature” means anything in electronic form which—

  (a)

  is incorporated into, or otherwise logically associated with, any electronic communication or other electronic data;

  (b)

  is generated by the signatory or other source of the communication or data; and

  (c)

  is used for the purpose of facilitating, by means of a link between the signatory or other source and the communication or data, the establishment of the authenticity of the communication or data, the establishment of its integrity, or both;

• “key”, in relation to any electronic data, means any key, code, password, algorithm or other data the use of which (with or without other keys)—

  (a)

  allows access to the electronic data, or

  (b)

  facilitates the putting of the data into an intelligible form;

• “the police” means—

  (a)

  any constable [F342 (except a constable who is a [F343 National Crime Agency officer] F344 ...)];

  (b)

  the Commissioner of Police of the Metropolis or any Assistant Commissioner of Police of the Metropolis; or

  (c)

  the Commissioner of Police for the City of London;

• “protected information” means any electronic data which, without the key to the data—

  (a)

  cannot, or cannot readily, be accessed, or

  (b)

  cannot, or cannot readily, be put into an intelligible form;

• F345 ...

• “section 49 notice” means a notice under section 49;

• F346 ...

• “warrant” includes any authorisation, notice or other instrument (however described) conferring a power of the same description as may, in other cases, be conferred by a warrant.

(2) References in this Part to a person’s having information (including a key to protected information) in his possession include references—

(a) to its being in the possession of a person who is under his control so far as that information is concerned;

(b) to his having an immediate right of access to it, or an immediate right to have it transmitted or otherwise supplied to him; and

(c) to its being, or being contained in, anything which he or a person under his control is entitled, in exercise of any statutory power and without otherwise taking possession of it, to detain, inspect or search.

(3) References in this Part to something’s being intelligible or being put into an intelligible form include references to its being in the condition in which it was before an encryption or similar process was applied to it or, as the case may be, to its being restored to that condition.

(4) In this section—

(a) references to the authenticity of any communication or data are references to any one or more of the following—

(i) whether the communication or data comes from a particular person or other source;

(ii) whether it is accurately timed and dated;

(iii) whether it is intended to have legal effect;

and

(b) references to the integrity of any communication or data are references to whether there has been any tampering with or other modification of the communication or data.

Textual Amendments

F337 S. 56(1): words in para. (a) of the definition of "chief officer of police" omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(19)(a)(i)

F338 S. 56(1): para. (ca) in the definition of "chief officer of police" inserted (1.4.2013) by The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(19)(a)(ii)

F339 S. 56(1): words in the definition of "chief officer of police" substituted (4.6.2007) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 174; S.I. 2007/1442, art. 2(1)

F340 S. 56(1): paras (j) and (k) in the definition of "chief officer of police" repealed (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 174, 178, Sch. 4 para. 146(a), Sch. 17; S.I. 2006/378, art. 4(1), Sch. paras. 10, 13(hh) (subject to art. 4(2)-(7))

F341 S. 56(1): definition of "the custom and excise" repealed (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 92, 94, Sch. 12 para. 23, Sch. 14; S.I. 2008/219, art. 2(d)(ii)

F342 S. 56(1): words in the definition of "the police" inserted (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 178, Sch. 4 para. 149(b); S.I. 2006/378, art. 4(1), Sch. para. 10 (subject to art. 4(2)-(7))

F343 S. 56(1): words in para. (a) of the definition of "the police" substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 94(a); S.I. 2013/1682, art. 3(v)

F344 S. 56(1): words in para. (a) of the definition of "the police" omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(19)(b)

F345 Definition in s. 56(1) omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(19)(c)

F346 Definition in s. 56(1) omitted (7.10.2013) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 94(b); S.I. 2013/1682, art. 3(v)

Marginal Citations

M44 1996 c. 16.

Part IV U.K. Scrutiny etc. of investigatory powers and of the functions of the intelligence services

Modifications etc. (not altering text)

C69 Pt. IV (ss. 26-48): power to apply (with modifications) conferred (1.10.2002) by 2002 c. 30, s. 19(2)(b); S.I. 2002/2306, art. 2(b)(v)

C70 Pt. 4 modified (1.4.2004) by The Independent Police Complaints Commission (Investigatory Powers) Order 2004 (S.I. 2004/815), art. 3 (as amended (E.W.) (8.1.2018) by The Independent Office for Police Conduct (Transitional and Consequential) Regulations 2017 (S.I. 2017/1250), regs. 1, 10(6) (with reg. 37))

Commissioners U.K.

F347 57 Interception of Communications Commissioner. U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F347 S. 57 repealed (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 240(2)(a), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(i) (with regs. 6-11)

F348 58 Co-operation with and reports by s. 57 Commissioner. U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F348 S. 58 repealed (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 240(2)(a), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(i) (with regs. 6-11)

F349 59 Intelligence Services Commissioner. U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F349 S. 59 repealed (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 240(2)(b), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(i) (with regs. 6-11)

F350 59A Additional functions of the Intelligence Services Commissioner U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F350 S. 59A repealed (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 240(2)(b), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(i) (with regs. 6-11)

F351 60 Co-operation with and reports by s. 59 Commissioner. U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F351 S. 60 repealed (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 240(2)(b), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(i) (with regs. 6-11)

61 Investigatory Powers Commissioner for Northern Ireland. U.K.

(1) The Prime Minister, after consultation with the First Minister and deputy First Minister in Northern Ireland, shall appoint a Commissioner to be known as the Investigatory Powers Commissioner for Northern Ireland.

(2) The Investigatory Powers Commissioner for Northern Ireland shall keep under review the exercise and performance in Northern Ireland, by the persons on whom they are conferred or imposed, of any powers or duties under Part II which are conferred or imposed by virtue of an order under section 30 made by the Office of the First Minister and deputy First Minister in Northern Ireland.

(3) The Investigatory Powers Commissioner for Northern Ireland shall give the Tribunal all such assistance (including his opinion as to any issue falling to be determined by the Tribunal) as the Tribunal may require—

(a) in connection with the investigation of any matter by the Tribunal; or

(b) otherwise for the purposes of the Tribunal’s consideration or determination of any matter.

(4) It shall be the duty of—

(a) every person by whom, or on whose application, there has been given or granted any authorisation the function of giving or granting which is subject to review by the Investigatory Powers Commissioner for Northern Ireland,

(b) every person who has engaged in conduct with the authority of such an authorisation,

(c) every person who holds or has held any office, rank or position with the same public authority as a person falling within paragraph (a), and

(d) every person who holds or has held any office, rank or position with any public authority for whose benefit (within the meaning of Part II) activities which are or may be subject to any such review have been or may be carried out,

to disclose or provide to that Commissioner all such documents and information as he may require for the purpose of enabling him to carry out his functions.

(5) As soon as practicable after the end of each calendar year, the Investigatory Powers Commissioner for Northern Ireland shall make a report to the First Minister and deputy First Minister in Northern Ireland with respect to the carrying out of that Commissioner’s functions.

(6) The First Minister and deputy First Minister in Northern Ireland shall lay before the Northern Ireland Assembly a copy of every annual report made by the Investigatory Powers Commissioner for Northern Ireland under subsection (5), together with a statement as to whether any matter has been excluded from that copy in pursuance of subsection (7).

(7) If it appears to the First Minister and deputy First Minister in Northern Ireland, after consultation with the Investigatory Powers Commissioner for Northern Ireland, that the publication of any matter in an annual report would be contrary to the public interest or prejudicial to—

(a) the prevention or detection of serious crime, or

(b) the continued discharge of the functions of any public authority whose activities include activities that are subject to review by that Commissioner,

they may exclude that matter from the copy of the report as laid before the Northern Ireland Assembly.

(8) A person shall not be appointed under this section as the Investigatory Powers Commissioner for Northern Ireland unless he holds or has held office in Northern Ireland—

(a) in any capacity in which he is or was the holder of a high judicial office (within the meaning of [F352 Part 3 of the Constitutional Reform Act 2005]); or

(b) as a county court judge.

(9) The Investigatory Powers Commissioner for Northern Ireland shall hold office in accordance with the terms of his appointment; and there shall be paid to him out of the Consolidated Fund of Northern Ireland such allowances as the Department of Finance and Personnel may determine.

(10) The First Minister and deputy First Minister in Northern Ireland shall, after consultation with the Investigatory Powers Commissioner for Northern Ireland, provide him with such staff as they consider necessary for the carrying out of his functions.

Textual Amendments

F352 Words in s. 61(8)(a) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 145, 148, Sch. 17 para. 30(3); S.I. 2009/1604, art. 2(e)

Modifications etc. (not altering text)

C71 S. 61: power to repeal conferred (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 240(5)(a), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(i) (with regs. 6-11)

F353 62 Additional functions of Chief Surveillance Commissioner. U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F353 S. 62 repealed (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 240(2)(c), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(i) (with regs. 6-11)

F354 63 Assistant Surveillance Commissioners. U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F354 S. 63 repealed (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 240(2)(c), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(i) (with regs. 6-11)

64 Delegation of [F355 functions of the Investigatory Powers Commissioner for Northern Ireland]. U.K.

(1) Anything authorised or required by or under any enactment F356 ...to be done by [F357 the Investigatory Powers Commissioner for Northern Ireland] may be done by any member of the staff of that Commissioner who is authorised for the purpose (whether generally or specifically) by that Commissioner.

F358 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F355 Words in s. 64 heading substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 80(2) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(j)

F356 Words in s. 64(1) omitted (1.9.2017) by virtue of Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 80(3)(a) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(j)

F357 Words in s. 64(1) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 80(3)(b) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(j)

F358 S. 64(2) omitted (1.9.2017) by virtue of Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 80(4) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(j)

The Tribunal U.K.

65 The Tribunal. U.K.

(1) There shall, for the purpose of exercising the jurisdiction conferred on them by this section, be a tribunal consisting of such number of members as Her Majesty may by Letters Patent appoint.

(2) The jurisdiction of the Tribunal shall be—

(a) to be the only appropriate tribunal for the purposes of section 7 of the M45 Human Rights Act 1998 in relation to any proceedings under subsection (1)(a) of that section (proceedings for actions incompatible with Convention rights) which fall within subsection (3) of this section;

(b) to consider and determine any complaints made to them which, in accordance with subsection (4) F359 . . . , are complaints for which the Tribunal is the appropriate forum;

(c) to consider and determine any reference to them by any person that he has suffered detriment as a consequence of any prohibition or restriction, by virtue of section 17, on his relying in, or for the purposes of, any civil proceedings on any matter; and

(d) to hear and determine any other such proceedings falling within subsection (3) as may be allocated to them in accordance with provision made by the Secretary of State by order.

(3) Proceedings fall within this subsection if—

(a) they are proceedings against any of the intelligence services;

(b) they are proceedings against any other person in respect of any conduct, proposed conduct, by or on behalf of any of those services;

(c) they are proceedings brought by virtue of section 55(4); [F360 or]

F361 (ca) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F361 (cb) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) they are proceedings relating to the taking place in any challengeable circumstances of any conduct falling within subsection (5).

(4) The Tribunal is the appropriate forum for any complaint if it is a complaint by a person who is aggrieved by any conduct falling within subsection (5) which he believes—

(a) to have taken place in relation to him, to any of his property, to any communications sent by or to him, or intended for him, or to his use of any postal service, telecommunications service or telecommunication system; and

(b) to have taken place in challengeable circumstances or to have been carried out by or on behalf of any of the intelligence services.

F362 (4A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) Subject to subsection (6), conduct falls within this subsection if (whenever it occurred) it is—

(a) conduct by or on behalf of any of the intelligence services;

(b) conduct for or in connection with the interception of communications in the course of their transmission by means of a postal service or telecommunication system;

[F363 (ba) conduct for or in connection with the obtaining of secondary data from communications transmitted by means of such a service or system;

(bb) the issue, modification, renewal or service of a warrant under Part 2 or Chapter 1 of Part 6 of the Investigatory Powers Act 2016 (interception of communications);]

(c) [F364 conduct to which Chapter II of Part I applies; ]

[F364 conduct of a kind which may be permitted or required by an authorisation or notice under Part 3 of that Act or a warrant under Chapter 2 of Part 6 of that Act (acquisition of communications data);

(cza) the giving of an authorisation or notice under Part 3 of that Act or the issue, modification, renewal or service of a warrant under Chapter 2 of Part 6 of that Act;

(czb) conduct of a kind which may be required or permitted by a retention notice under Part 4 of that Act (retention of communications data) but excluding any conduct which is subject to review by the Information Commissioner;

(czc) the giving or varying of a retention notice under that Part of that Act;

(czd) conduct of a kind which may be required or permitted by a warrant under Part 5 or Chapter 3 of Part 6 of that Act (equipment interference);

(cze) the issue, modification, renewal or service of a warrant under Part 5 or Chapter 3 of Part 6 of that Act;

(czf) the issue, modification, renewal or service of a warrant under Part 7 of that Act (bulk personal dataset warrants);

(czg) the giving of an authorisation under section 219(3)(b) (authorisation for the retention, or retention and examination, of material following expiry of bulk personal dataset warrant);

(czh) the giving or varying of a direction under section 225 of that Act (directions where no bulk personal dataset warrant required);

(czi) conduct of a kind which may be required by a notice under section 252 or 253 of that Act (national security or technical capability notices);

(czj) the giving or varying of such a notice;

(czk) the giving of an authorisation under section 152(5)(c) or 193(5)(c) of that Act (certain authorisations to examine intercepted content or protected material);

(czl) any failure to—

(i) cancel a warrant under Part 2, 5, 6 or 7 of that Act or an authorisation under Part 3 of that Act;

(ii) cancel a notice under Part 3 of that Act;

(iii) revoke a notice under Part 4, or section 252 or 253, of that Act; or

(iv) revoke a direction under section 225 of that Act;

(czm) any conduct in connection with any conduct falling within paragraph (c), (czb), (czd) or (czi);]

[F365 (ca) the carrying out of surveillance by a foreign police or customs officer (within the meaning of section 76A);]

(d) [F366 other] conduct to which Part II applies;

(e) the giving of a notice under section 49 or any disclosure or use of a key to protected information;

(f) any entry on or interference with property or any interference with wireless telegraphy.

(6) For the purposes only of subsection (3), nothing mentioned in paragraph (d) or (f) of subsection (5) shall be treated as falling within that subsection unless it is conduct by or on behalf of a person holding any office, rank or position with—

(a) any of the intelligence services;

(b) any of Her Majesty’s forces;

(c) any police force;

[F367 (ca) the Police Investigations and Review Commissioner;]

[F368 (d) the National Crime Agency;]

F369 (da) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F370 (f) the Commissioners for Her Majesty's Revenue and Customs;]

and section 48(5) applies for the purposes of this subsection as it applies for the purposes of Part II.

(7) For the purposes of this section conduct takes place in challengeable circumstances if [F371 it is conduct of a public authority and] —

(a) it takes place with the authority, or purported authority, of anything falling within subsection (8); or

(b) the circumstances are such that (whether or not there is such authority) it would not have been appropriate for the conduct to take place without it, or at least without proper consideration having been given to whether such authority should be sought;

but [F372 , subject to subsection (7ZA),] conduct does not take place in challengeable circumstances to the extent that it is authorised by, or takes place with the permission of, a judicial authority.

[F373 (7ZA) The exception in subsection (7) so far as conduct is authorised by, or takes place with the permission of, a judicial authority does not include conduct authorised by an approval given [F374 by a Judicial Commissioner or under section 32A of this Act or section 75 of the Investigatory Powers Act 2016].]

[F375 (7ZB) For the purposes of this section conduct also takes place in challengeable circumstances if it is, or purports to be, conduct falling within subsection (5)(bb), (cza), (czc), (cze), (czf), (czg), (czh), (czj), (czk) or (czl) or (so far as the conduct is, or purports to be, the giving of a notice under section 49) subsection (5)(e).]

[F376 (7A) For the purposes of this section conduct also takes place in challengeable circumstances if it takes place, or purports to take place, under section 76A.]

(8) The following fall within this subsection—

F377 (a) [F378 an interception warrant or a warrant under the M46 Interception of Communications Act 1985;]

[F378 a warrant under Part 2, 5, 6 or 7 of the Investigatory Powers Act 2016;]

F377 (b) [F378 an authorisation or notice under Chapter II of Part I of this Act;]

[F378 an authorisation or notice under Part 3 of that Act;

F377 (ba) a retention notice under Part 4 of that Act;

F377 (bb) a direction under section 225 of that Act;

F377 (bc) a notice under section 252 or 253 of that Act;]

(c) an authorisation under Part II of this Act or under any enactment contained in or made under an Act of the Scottish Parliament which makes provision equivalent to that made by that Part;

(d) a permission for the purposes of Schedule 2 to this Act;

(e) a notice under section 49 of this Act; or

(f) an authorisation under section 93 of the M47 Police Act 1997.

(9) Schedule 3 (which makes further provision in relation to the Tribunal) shall have effect.

[F379 (9A) In subsection (5)(ba) the reference to obtaining secondary data from communications transmitted by means of a postal service or telecommunication system is to be read in accordance with section 16 of the Investigatory Powers Act 2016.]

(10) In this section—

(a) references to a key and to protected information shall be construed in accordance with section 56;

(b) references to the disclosure or use of a key to protected information taking place in relation to a person are references to such a disclosure or use taking place in a case in which that person has had possession of the key or of the protected information; and

(c) references to the disclosure of a key to protected information include references to the making of any disclosure in an intelligible form (within the meaning of section 56) of protected information by a person who is or has been in possession of the key to that information;

and the reference in paragraph (b) to a person’s having possession of a key or of protected information shall be construed in accordance with section 56.

(11) In this section “judicial authority” means—

(a) any judge of the High Court or of the Crown Court or any Circuit Judge;

(b) any judge of the High Court of Justiciary or any sheriff;

(c) any justice of the peace;

(d) any county court judge or resident magistrate in Northern Ireland;

(e) any person holding any such judicial office as entitles him to exercise the jurisdiction of a judge of the Crown Court or of a justice of the peace.

Textual Amendments

F359 Words in s. 65(2)(b) omitted (21.1.2011) by virtue of Identity Documents Act 2010 (c. 40), ss. 12, 14(2), Sch. para. 14(2)

F360 Word at the end of s. 65(3)(c) inserted (21.1.2011) by Identity Documents Act 2010 (c. 40), ss. 12, 14(2), Sch. para. 14(3)(a)

F361 S. 65(3)(ca)(cb) and word omitted (21.1.2011) by virtue of Identity Documents Act 2010 (c. 40), ss. 12, 14(2), Sch. para. 14(3)(b)

F362 S. 65(4A) omitted (21.1.2011) by virtue of Identity Documents Act 2010 (c. 40), ss. 12, 14(2), Sch. para. 14(4)

F363 S. 65(5)(ba)(bb) inserted (27.6.2018) by Investigatory Powers Act 2016 (c. 25), ss. 243(1)(b), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/652, reg. 11(e)(i)

F364 S. 65(5)(c)-(czm) substituted for s. 65(5)(c) (12.3.2018 for specified purposes, 27.6.2018 for specified purposes, 22.8.2018 for specified purposes, 5.2.2019 for specified purposes, 22.7.2020 in so far as not already in force) by Investigatory Powers Act 2016 (c. 25), ss. 243(1)(c), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/341, reg. 2(c)(i); S.I. 2018/652, reg. 11(e)(ii); S.I. 2018/873, reg. 3(g)(i); S.I. 2019/174, reg. 2(g); S.I. 2020/766, reg. 2(b)

F365 S. 65(5)(ca) inserted (26.4.2004) by Crime (International Co-operation) Act 2003 (c. 32), ss. 90, 94, Sch. 5 para. 79(a)(i); S.I. 2004/786, art. 3(1)(2)

F366 Word in s. 65(5)(d) inserted (26.4.2004) by Crime (International Co-operation) Act 2003 (c. 32), ss. 90, 94, Sch. 5 para. 79(a)(ii); S.I. 2004/786, art. 3(1)(2)

F367 S. 65(6)(ca) inserted (1.4.2013) by The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(21)(a)

F368 S. 65(6)(d) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 96; S.I. 2013/1682, art. 3(v)

F369 S. 65(6)(da) omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(21)(b)

F370 S. 65(6)(f) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 24; S.I. 2008/219, art. 2(b)

F371 Words in s. 65(7) inserted (27.6.2018) by Investigatory Powers Act 2016 (c. 25), ss. 243(1)(f), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/652, reg. 11(e)(iii)

F372 Words in s. 65(7) inserted (1.11.2012) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 9 para. 12(2) (with s. 97); S.I. 2012/2075, art. 4(d)

F373 S. 65(7ZA) inserted (1.11.2012) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 9 para. 12(3) (with s. 97); S.I. 2012/2075, art. 4(d)

F374 Words in s. 65(7ZA) substituted (30.8.2018) by Investigatory Powers Act 2016 (c. 25), ss. 243(1)(g), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/940, reg. 2(1)(c) (with regs. 2(2), 7)

F375 S. 65(7ZB) inserted (12.3.2018 for specified purposes, 27.6.2018 for specified purposes, 22.8.2018 for specified purposes, 5.2.2019 for specified purposes, 22.7.2020 in so far as not already in force) by Investigatory Powers Act 2016 (c. 25), ss. 243(1)(h), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/341, reg. 2(c)(ii); S.I. 2018/652, reg. 11(e)(iv); S.I. 2018/873, reg. 3(g)(ii); S.I. 2019/174, reg. 2(h); S.I. 2020/766, reg. 2(b)

F376 S. 65(7A) inserted (26.4.2004) by Crime (International Co-operation) Act 2003 (c. 32), ss. 90, 94, Sch. 5 para. 79(b); S.I. 2004/786, art. 3(1)(2)

F377 S. 65(8)(a)-(bc) substituted for s. 65(8)(a) (12.3.2018 for specified purposes, 27.6.2018 for specified purposes, 22.8.2018 for specified purposes) by Investigatory Powers Act 2016 (c. 25), ss. 243(1)(i), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/341, reg. 2(c)(iii); S.I. 2018/652, reg. 11(e)(v); S.I. 2018/873, reg. 3(g)(iii)

F378 S. 65(8)(a)-(bc) substituted for s. 65(8)(a) (12.3.2018 for specified purposes, 27.6.2018 for specified purposes, 22.8.2018 for specified purposes, 1.11.2018 for specified purposes, 5.2.2019 in so far as not already in force) by Investigatory Powers Act 2016 (c. 25), ss. 243(1)(i), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/341, reg. 2(c)(iii); S.I. 2018/652, reg. 11(e)(v); S.I. 2018/873, regs. 3(g)(iii), 4(d); S.I. 2019/174, reg. 2(i)

F379 S. 65(9A) inserted (27.6.2018) by Investigatory Powers Act 2016 (c. 25), ss. 243(1)(j), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/652, reg. 11(e)(vi)

Modifications etc. (not altering text)

C72 S. 65 extended (S.) (29.9.2000) by 2000 asp 11, ss. 23(1)(2), 32(2) (with s. 30); S.I. 2000/341, art. 2

C73 S. 65 modified (8.3.2018) by The Investigatory Powers Act 2016 (Commencement No. 4 and Transitional and Saving Provisions) Regulations 2018 (S.I. 2018/341), reg. 7

C74 S. 65(8) modified (temp.) (29.5.2018) by The Investigatory Powers Act 2016 (Commencement No. 5 and Transitional and Saving Provisions) Regulations 2018 (S.I. 2018/652), reg. 19(5)

C75 S. 65(8)(a) modified (20.8.2018) by The Investigatory Powers Act 2016 (Commencement No. 8 and Transitional and Saving Provisions) Regulations 2018 (S.I. 2018/940), reg. 8(1)

Commencement Information

I3 S. 65 partly in force; s. 65 not in force at Royal Assent see s. 83(2); s. 65(1)(2)(a)(b)(3)(a)(b)(d)(4)(5)(a)(b)(d)(f)(6)(7)(8)(a)(c)(f)(9)(11) in force at 2.10.2000 by S.I. 2000/2543, art. 3 (subject to transitional provisions in art. 6); s. 65(5)(c)(8)(b) in force at 5.1.2004 by S.I. 2003/3140, art. 2; s. 65(3)(c)(5)(e)(8)(d)(e)(10) in force at 1.10.2007 by S.I. 2007/2196, art. 2(f)

Marginal Citations

M45 1998 c.42

M46 1985 c. 56.

M47 1997 c. 50.

Prospective

66 Orders allocating proceedings to the Tribunal. U.K.

(1) An order under section 65(2)(d) allocating proceedings to the Tribunal—

(a) may provide for the Tribunal to exercise jurisdiction in relation to that matter to the exclusion of the jurisdiction of any court or tribunal; but

(b) if it does so provide, must contain provision conferring a power on the Tribunal, in the circumstances provided for in the order, to remit the proceedings to the court or tribunal which would have had jurisdiction apart from the order.

(2) In making any provision by an order under section 65(2)(d) the Secretary of State shall have regard, in particular, to—

(a) the need to secure that proceedings allocated to the Tribunal are properly heard and considered; and

(b) the need to secure that information is not disclosed to an extent, or in a manner, that is contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime, the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence services.

(3) The Secretary of State shall not make an order under section 65(2)(d) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

67 Exercise of the Tribunal’s jurisdiction. U.K.

(1) Subject to subsections (4) and (5), it shall be the duty of the Tribunal—

(a) to hear and determine any proceedings brought before them by virtue of section 65(2)(a) or (d); and

(b) to consider and determine any complaint or reference made to them by virtue of section 65(2)(b) or (c).

(2) Where the Tribunal hear any proceedings by virtue of section 65(2)(a), they shall apply the same principles for making their determination in those proceedings as would be applied by a court on an application for judicial review.

(3) Where the Tribunal consider a complaint made to them by virtue of section 65(2)(b), it shall be the duty of the Tribunal—

(a) to investigate whether the persons against whom any allegations are made in the complaint have engaged in relation to—

(i) the complainant,

(ii) any of his property,

(iii) any communications sent by or to him, or intended for him, or

(iv) his use of any postal service, telecommunications service or telecommunication system,

in any conduct falling within section 65(5);

(b) to investigate the authority (if any) for any conduct falling within section 65(5) which they find has been so engaged in; and

(c) in relation to the Tribunal’s findings from their investigations, to determine the complaint by applying the same principles as would be applied by a court on an application for judicial review.

(4) The Tribunal shall not be under any duty to hear, consider or determine any proceedings, complaint or reference if it appears to them that the bringing of the proceedings or the making of the complaint or reference is frivolous or vexatious.

(5) Except where the Tribunal, having regard to all the circumstances, are satisfied that it is equitable to do so, they shall not consider or determine any complaint made by virtue of section 65(2)(b) if it is made more than one year after the taking place of the conduct to which it relates.

(6) Subject to any provision made by rules under section 69, where any proceedings have been brought before the Tribunal or any reference made to the Tribunal, they shall have power to make such interim orders, pending their final determination, as they think fit.

(7) Subject to any provision made by rules under section 69, the Tribunal on determining any proceedings, complaint or reference shall have power to make any such award of compensation or other order as they think fit; and, without prejudice to the power to make rules under section 69(2)(h), the other orders that may be made by the Tribunal include—

(a) an order quashing or cancelling any warrant or authorisation;

[F380 (aza) an order quashing or cancelling a notice under Part 3 of the Investigatory Powers Act 2016 or a retention notice under Part 4 of that Act;

(azb) an order quashing or revoking a direction under section 225 of that Act;

(azc) an order quashing or revoking a notice under section 252 or 253 of that Act;]

[F381 (aa) an order quashing an order under section 23A or 32A by the relevant judicial authority (within the meaning of that section);] and

(b) an order requiring the destruction of any records of information which—

(i) has been obtained in exercise of any power conferred by a warrant or authorisation; or

(ii) is held by any public authority in relation to any person.

(8) Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.

(9) It shall be the duty of the Secretary of State to secure that there is at all times an order under subsection (8) in force allowing for an appeal to a court against any exercise by the Tribunal of their jurisdiction under section 65(2)(c) or (d).

(10) The provision that may be contained in an order under subsection (8) may include—

(a) provision for the establishment and membership of a tribunal or body to hear appeals;

(b) the appointment of persons to that tribunal or body and provision about the remuneration and allowances to be payable to such persons and the expenses of the tribunal;

(c) the conferring of jurisdiction to hear appeals on any existing court or tribunal; and

(d) any such provision in relation to an appeal under the order as corresponds to provision that may be made by rules under section 69 in relation to proceedings before the Tribunal, or to complaints or references made to the Tribunal.

(11) The Secretary of State shall not make an order under subsection (8) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(12) The Secretary of State shall consult the Scottish Ministers before making any order under subsection (8); and any such order shall be laid before the Scottish Parliament.

Textual Amendments

F380 S. 67(7)(aza)-(azc) inserted (12.3.2018 for specified purposes, 22.8.2018 for specified purposes, 5.2.2019 in so far as not already in force) by Investigatory Powers Act 2016 (c. 25), ss. 243(2)(a), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/341, reg. 2(c)(iv); S.I. 2018/873, reg. 3(h); S.I. 2019/174, reg. 2(j)(i)

F381 S. 67(7)(aa) inserted (1.11.2012) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 9 para. 13 (with s. 97); S.I. 2012/2075, art. 4(d)

Modifications etc. (not altering text)

C76 S. 67(7) applied (with modifications) by 1998 c. 47, s. 69B(2)(c)(i) (as inserted (1.8.2007) by Justice and Security (Northern Ireland) Act 2007 (c. 6), ss. 15, 53 (with s. 20); S.I. 2007/2045, art. 2(2)(3)(j) (with art. 3))

C77 S. 67(8) applied (with modifications) by 1998 c. 47, s. 69B(2)(c)(i) (as inserted (1.8.2007) by Justice and Security (Northern Ireland) Act 2007 (c. 6), ss. 15, 53 (with s. 20); S.I. 2007/2045, art. 2(2)(3)(j) (with art. 3))

C78 S. 67(10) applied (with modifications) by 1998 c. 47, s. 69B(2)(c)(i) (as inserted (1.8.2007) by Justice and Security (Northern Ireland) Act 2007 (c. 6), ss. 15, 53 (with s. 20); S.I. 2007/2045, art. 2(2)(3)(j) (with art. 3))

C79 S. 67(11) applied (with modifications) by 1998 c. 47, s. 69B(2)(c)(i) (as inserted (1.8.2007) by Justice and Security (Northern Ireland) Act 2007 (c. 6), ss. 15, 53 (with s. 20); S.I. 2007/2045, art. 2(2)(3)(j) (with art. 3))

C80 S. 67(12) applied (with modifications) by 1998 c. 47, s. 69B(2)(c)(i) (as inserted (1.8.2007) by Justice and Security (Northern Ireland) Act 2007 (c. 6), ss. 15, 53 (with s. 20); S.I. 2007/2045, art. 2(2)(3)(j) (with art. 3))

Commencement Information

I4 S. 67 partly in force; s. 67 not in force at Royal Assent see s. 83(1); s. 67(2)-(8)(10)-(12) in force at 2.10.2000 and s. 67(1) in force 2.10.2000 for certain purposes by S.I.2543, art. 3

68 Tribunal procedure. U.K.

(1) Subject to any rules made under section 69, the Tribunal shall be entitled to determine their own procedure in relation to any proceedings, complaint or reference brought before or made to them.

(2) The Tribunal shall have power—

(a) in connection with the investigation of any matter, or

(b) otherwise for the purposes of the Tribunal’s consideration or determination of any matter,

to require a relevant Commissioner appearing to the Tribunal to have functions in relation to the matter in question to provide the Tribunal with all such assistance (including that Commissioner’s opinion as to any issue falling to be determined by the Tribunal) as the Tribunal think fit.

(3) Where the Tribunal hear or consider any proceedings, complaint or reference relating to any matter, they shall secure that every relevant Commissioner appearing to them to have functions in relation to that matter—

(a) is aware that the matter is the subject of proceedings, a complaint or a reference brought before or made to the Tribunal; and

(b) is kept informed of any determination, award, order or other decision made by the Tribunal with respect to that matter.

(4) Where the Tribunal determine any proceedings, complaint or reference brought before or made to them, they shall give notice to the complainant which (subject to any rules made by virtue of section 69(2)(i)) shall be confined, as the case may be, to either—

(a) a statement that they have made a determination in his favour; or

(b) a statement that no determination has been made in his favour.

(5) Where—

(a) the Tribunal make a determination in favour of any person by whom any proceedings have been brought before the Tribunal or by whom any complaint or reference has been made to the Tribunal, and

(b) the determination relates to any act or omission by or on behalf of the Secretary of State or to conduct for which any warrant, authorisation or permission [F382 , or notice under Part 4 of the Investigatory Powers Act 2016 or under section 252 or 253 of that Act or direction under section 225 of that Act,] was issued, granted or given by the Secretary of State,

they shall make a report of their findings to the Prime Minister.

(6) It shall be the duty of the persons specified in subsection (7) to disclose or provide to the Tribunal all such documents and information as the Tribunal may require for the purpose of enabling them—

(a) to exercise the jurisdiction conferred on them by or under section 65; or

(b) otherwise to exercise or perform any power or duty conferred or imposed on them by or under this Act [F383 or the Investigatory Powers Act 2016].

(7) Those persons are—

(a) every person holding office under the Crown;

F384 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F385 (ba) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) every person employed by or for the purposes of a police force;

[F386 (da) the Police Investigations and Review Commissioner and every member of the Commissioner’s staff;]

(e) every person required for the purposes of [F387 section 41, 126, 149, 168 or 190 of the Investigatory Powers Act 2016] to provide assistance with giving effect to [F388 a warrant];

(f) every person on whom an obligation to take any steps has been imposed under [F389 section 252 or 253 of that Act];

[F390 (g) every person by or to whom an authorisation under Part 3 of that Act has been granted;

(h) every person to whom a notice under Part 3 of that Act has been given;

(ha) every person to whom a retention notice under Part 4 of that Act or a notice under section 252 or 253 of that Act has been given;]

(i) every person by whom, or on whose application, there has been granted or given any authorisation under Part II of this Act or under Part III of the M48 Police Act 1997;

(j) every person who holds or has held any office, rank or position with the same public authority as a person falling within paragraph (i);

(k) every person who has engaged in any conduct with the authority of[F391 —

(i) an authorisation under Part 3 of the Investigatory Powers Act 2016, Part 2 of this Act or Part 3 of the Police Act 1997, or

(ii) a warrant under Chapter 2 of Part 6 of the Investigatory Powers Act 2016;]

(l) every person who holds or has held any office, rank or position with a public authority for whose benefit any such authorisation [F392 or warrant] has been or may be given;

(m) every person to whom a notice under section 49 has been given; and

(n) every person who is or has been employed for the purposes of any business of a person falling within paragraph (e), (f), (h) [F393 , (ha)] or (m).

(8) In this section “relevant Commissioner” means the [F394 Investigatory Powers Commissioner or any other Judicial Commissioner or the Investigatory Powers Commissioner for Northern Ireland].

Textual Amendments

F382 Words in s. 68(5)(b) inserted (12.3.2018) by Investigatory Powers Act 2016 (c. 25), ss. 243(3), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/341, reg. 2(c)(v)

F383 Words in s. 68(6)(b) inserted (12.3.2018) by Investigatory Powers Act 2016 (c. 25), ss. 243(4), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/341, reg. 2(c)(vi)

F384 S. 68(7)(b) omitted (7.10.2013) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 97; S.I. 2013/1682, art. 3(v)

F385 S. 68(7)(ba) omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(22)(a)

F386 S. 68(7)(da) inserted (1.4.2013) by The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(22)(b)

F387 Words in s. 68(7)(e) substituted (27.6.2018) by Investigatory Powers Act 2016 (c. 25), ss. 243(5)(a)(i), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/652, reg. 11(e)(vii)

F388 Words in s. 68(7)(e) substituted (27.6.2018) by Investigatory Powers Act 2016 (c. 25), ss. 243(5)(a)(ii), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/652, reg. 11(e)(vii)

F389 Words in s. 68(7)(f) substituted (12.3.2018) by Investigatory Powers Act 2016 (c. 25), ss. 243(5)(b), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/341, reg. 2(c)(vii)

F390 S. 68(7)(g)-(ha) substituted for s. 68(g)(h) (12.3.2018) by Investigatory Powers Act 2016 (c. 25), ss. 243(5)(c), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/341, reg. 2(c)(vii)

F391 Words in s. 68(7)(k) substituted (22.8.2018) by Investigatory Powers Act 2016 (c. 25), ss. 243(5)(d), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/873, reg. 3(i)

F392 Words in s. 68(7)(l) inserted (22.8.2018) by Investigatory Powers Act 2016 (c. 25), ss. 243(5)(e), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/873, reg. 3(i)

F393 Word in s. 68(7)(n) inserted (27.6.2018) by Investigatory Powers Act 2016 (c. 25), ss. 243(5)(f), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/652, reg. 11(e)(vii)

F394 Words in s. 68(8) substituted (12.3.2018) by Investigatory Powers Act 2016 (c. 25), ss. 243(6), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/341, reg. 2(c)(viii)

Modifications etc. (not altering text)

C81 S. 68 applied (with modifications) by 1998 c. 47, s. 69B(2)(c)(ii) (as inserted (1.8.2007) by Justice and Security (Northern Ireland) Act 2007 (c. 6), ss. 15, 53 (with s. 20); S.I. 2007/2045, art. 2(2)(3)(j) (with art. 3))

C82 S. 68 modified (8.3.2018) by The Investigatory Powers Act 2016 (Commencement No. 4 and Transitional and Saving Provisions) Regulations 2018 (S.I. 2018/341), reg. 7

C83 S. 68 modified (18.7.2018) by The Investigatory Powers Act 2016 (Commencement No. 7 and Transitional and Saving Provisions) Regulations 2018 (S.I. 2018/873), reg. 10

C84 S. 68(7) modified (temp.) (29.5.2018) by The Investigatory Powers Act 2016 (Commencement No. 5 and Transitional and Saving Provisions) Regulations 2018 (S.I. 2018/652), reg. 19(5)

C85 S. 68(7) modified (temp.) (29.5.2018) by The Investigatory Powers Act 2016 (Commencement No. 5 and Transitional and Saving Provisions) Regulations 2018 (S.I. 2018/652), reg. 26

C86 S. 68(7)(e) modified (temp.) (29.5.2018) by The Investigatory Powers Act 2016 (Commencement No. 5 and Transitional and Saving Provisions) Regulations 2018 (S.I. 2018/652), reg. 19(3)(c)

C87 S. 68(7)(e) modified (20.8.2018) by The Investigatory Powers Act 2016 (Commencement No. 8 and Transitional and Saving Provisions) Regulations 2018 (S.I. 2018/940), reg. 8(2)(3)

Commencement Information

I5 S. 68 wholly in force at 1.10.2007; s. 68 not in force at Royal Assent see s. 83(2); s. 68 in force except s. 68(7)(g)(h)(m) and s. 68(7)(n) in respect of s. 68(7)(m) at 2.10.2000 by S.I. 2000/2543, art. 3; s. 68(7)(g)(h) in force at 5.1.2004 by S.I. 2003/3140, art. 2; s. 68(7)(m) in force and (n) in force for certain purposes at 1.10.2007 by S.I. 2007/2196, art. 2(g)

Marginal Citations

M48 1997 c. 50.

69 Tribunal rules. U.K.

(1) The Secretary of State may make rules regulating—

(a) the exercise by the Tribunal of the jurisdiction conferred on them by or under section 65; and

(b) any matters preliminary or incidental to, or arising out of, the hearing or consideration of any proceedings, complaint or reference brought before or made to the Tribunal.

(2) Without prejudice to the generality of subsection (1), rules under this section may—

(a) enable the jurisdiction of the Tribunal to be exercised at any place in the United Kingdom by any two or more members of the Tribunal designated for the purpose by the President of the Tribunal;

(b) enable different members of the Tribunal to carry out functions in relation to different complaints at the same time;

(c) prescribe the form and manner in which proceedings are to be brought before the Tribunal or a complaint or reference is to be made to the Tribunal;

(d) require persons bringing proceedings or making complaints or references to take such preliminary steps, and to make such disclosures, as may be specified in the rules for the purpose of facilitating a determination of whether—

(i) the bringing of the proceedings, or

(ii) the making of the complaint or reference,

is frivolous or vexatious;

(e) make provision about the determination of any question as to whether a person by whom—

(i) any proceedings have been brought before the Tribunal, or

(ii) any complaint or reference has been made to the Tribunal,

is a person with a right to bring those proceedings or make that complaint or reference;

(f) prescribe the forms of hearing or consideration to be adopted by the Tribunal in relation to particular proceedings, complaints or references (including a form that requires any proceedings brought before the Tribunal to be disposed of as if they were a complaint or reference made to the Tribunal);

(g) prescribe the practice and procedure to be followed on, or in connection with, the hearing or consideration of any proceedings, complaint or reference (including, where applicable, the mode and burden of proof and the admissibility of evidence);

(h) prescribe orders that may be made by the Tribunal under section 67(6) or (7);

(i) require information about any determination, award, order or other decision made by the Tribunal in relation to any proceedings, complaint or reference to be provided (in addition to any statement under section 68(4)) to the person who brought the proceedings or made the complaint or reference, or to the person representing his interests.

(3) Rules under this section in relation to the hearing or consideration of any matter by the Tribunal may provide—

(a) for a person who has brought any proceedings before or made any complaint or reference to the Tribunal to have the right to be legally represented;

(b) for the manner in which the interests of a person who has brought any proceedings before or made any complaint or reference to the Tribunal are otherwise to be represented;

(c) for the appointment in accordance with the rules, by such person as may be determined in accordance with the rules, of a person to represent those interests in the case of any proceedings, complaint or reference.

(4) The power to make rules under this section includes power to make rules—

(a) enabling or requiring the Tribunal to hear or consider any proceedings, complaint or reference without the person who brought the proceedings or made the complaint or reference having been given full particulars of the reasons for any conduct which is the subject of the proceedings, complaint or reference;

(b) enabling or requiring the Tribunal to take any steps in exercise of their jurisdiction in the absence of any person (including the person bringing the proceedings or making the complaint or reference and any legal representative of his);

(c) enabling or requiring the Tribunal to give a summary of any evidence taken in his absence to the person by whom the proceedings were brought or, as the case may be, to the person who made the complaint or reference;

(d) enabling or requiring the Tribunal to exercise their jurisdiction, and to exercise and perform the powers and duties conferred or imposed on them (including, in particular, in relation to the giving of reasons), in such manner provided for in the rules as prevents or limits the disclosure of particular matters.

(5) Rules under this section may also include provision—

(a) enabling powers or duties of the Tribunal that relate to matters preliminary or incidental to the hearing or consideration of any proceedings, complaint or reference to be exercised or performed by a single member of the Tribunal; and

(b) conferring on the Tribunal such ancillary powers as the Secretary of State thinks necessary for the purposes of, or in connection with, the exercise of the Tribunal’s jurisdiction, or the exercise or performance of any power or duty conferred or imposed on them.

(6) In making rules under this section the Secretary of State shall have regard, in particular, to—

(a) the need to secure that matters which are the subject of proceedings, complaints or references brought before or made to the Tribunal are properly heard and considered; and

(b) the need to secure that information is not disclosed to an extent, or in a manner, that is contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime, the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence services.

(7) Rules under this section may make provision by the application, with or without modification, of the provision from time to time contained in specified rules of court.

(8) Subject to subsection (9), no rules shall be made under this section unless a draft of them has first been laid before Parliament and approved by a resolution of each House.

(9) Subsection (8) does not apply in the case of the rules made on the first occasion on which the Secretary of State exercises his power to make rules under this section.

(10) The rules made on that occasion shall cease to have effect at the end of the period of forty days beginning with the day on which they were made unless, before the end of that period, they have been approved by a resolution of each House of Parliament.

(11) For the purposes of subsection (10)—

(a) the rules’ ceasing to have effect shall be without prejudice to anything previously done or to the making of new rules; and

(b) in reckoning the period of forty days no account shall be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

(12) The Secretary of State shall consult the Scottish Ministers before making any rules under this section; and any rules so made shall be laid before the Scottish Parliament.

Modifications etc. (not altering text)

C88 S. 69 applied (with modifications) by 1998 c. 47, s. 69B(2)(c)(iii) (as inserted (1.8.2007) by Justice and Security (Northern Ireland) Act 2007 (c. 6), ss. 15, 53 (with s. 20); S.I. 2007/2045, art. 2(2)(3)(j) (with art. 3))

70 Abolition of jurisdiction in relation to complaints. U.K.

(1) The provisions set out in subsection (2) (which provide for the investigation etc. of certain complaints) shall not apply in relation to any complaint made after the coming into force of this section.

(2) Those provisions are—

(a) section 5 of, and Schedules 1 and 2 to, the M49 Security Service Act 1989 (investigation of complaints about the Security Service made to the Tribunal established under that Act);

(b) section 9 of, and Schedules 1 and 2 to, the M50 Intelligence Services Act 1994 (investigation of complaints about the Secret Intelligence Service or GCHQ made to the Tribunal established under that Act); and

(c) section 102 of, and Schedule 7 to, the M51 Police Act 1997 (investigation of complaints made to the Surveillance Commissioners).

Marginal Citations

M49 1989 c. 5.

M50 1994 c. 13.

M51 1997 c. 50.

Codes of practice U.K.

71 Issue and revision of codes of practice. U.K.

(1) The Secretary of State shall issue one or more codes of practice relating to the exercise and performance of the powers and duties mentioned in subsection (2).

(2) Those powers and duties are those (excluding any power to make subordinate legislation [F395 and subject to subsection (10)]) that are conferred or imposed otherwise than on [F396 a Judicial Commissioner ] [F397 or the relevant judicial authority (within the meaning of section 23A or 32A)] by or under—

(a) Parts I to III of this Act;

(b) section 5 of the M52 Intelligence Services Act 1994 (warrants for interference with property or wireless telegraphy for the purposes of the intelligence services); and

(c) Part III of the M53 Police Act 1997 (authorisation by the police or [F398 Her Majesty's Revenue and Customs] of interference with property or wireless telegraphy).

[F399 (2A) A code of practice under subsection (1) that relates (expressly or otherwise) to the exercise and performance, in connection with the prevention or detection of serious crime, of powers and duties conferred or imposed by or under Part 1 of this Act—

(a) shall include provision designed to protect the public interest in the confidentiality of journalistic sources;

(b) shall not be issued unless the Secretary of State has first consulted the Interception of Communications Commissioner and considered any relevant report made to the Prime Minister under section 58.]

(3) Before issuing a code of practice under subsection (1), the Secretary of State shall—

(a) prepare and publish a draft of that code; and

(b) consider any representations made to him about the draft;

and the Secretary of State may incorporate in the code finally issued any modifications made by him to the draft after its publication.

(4) The Secretary of State shall lay before both Houses of Parliament every draft code of practice prepared and published by him under this section.

(5) A code of practice issued by the Secretary of State under this section shall not be brought into force except in accordance with an order made by the Secretary of State.

(6) An order under subsection (5) may contain such transitional provisions and savings as appear to the Secretary of State to be necessary or expedient in connection with the bringing into force of the code brought into force by that order.

(7) The Secretary of State may from time to time—

(a) revise the whole or any part of a code issued under this section; and

(b) issue the revised code.

(8) Subsections [F400 (2A)] to (6) shall apply (with appropriate modifications) in relation to the issue of any revised code under this section as they apply in relation to the first issue of such a code.

(9) The Secretary of State shall not make an order containing provision for any of the purposes of this section unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

[F401 (10) A code of practice under this section may not relate to any matter which is to be dealt with by guidance of the Interception of Communications Commissioner by virtue of paragraph 7 of Schedule A1.]

Textual Amendments

F395 Words in s. 71(2) inserted (17.6.2011) by The Regulation of Investigatory Powers (Monetary Penalty Notices and Consents for Interceptions) Regulations 2011 (S.I. 2011/1340), regs. 1(2), 2(2)

F396 Words in s. 71(2) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 81 (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(j)

F397 Words in s. 71(2) inserted (1.11.2012) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 9 para. 14 (with s. 97); S.I. 2012/2075, art. 4(d)

F398 Words in s. 71(2)(c) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 25; S.I. 2008/219, art. 2(b)

F399 S. 71(2A) inserted (3.3.2015) by Serious Crime Act 2015 (c. 9), ss. 83, 88(5)(d) (with s. 86(12))

F400 Word in s. 71(8) substituted (3.5.2015) by Serious Crime Act 2015 (c. 9), s. 88(1), Sch. 4 para. 18; S.I. 2015/820, reg. 2(r)(iv)

F401 S. 71(10) inserted (17.6.2011) by The Regulation of Investigatory Powers (Monetary Penalty Notices and Consents for Interceptions) Regulations 2011 (S.I. 2011/1340), regs. 1(2), 2(3)

Modifications etc. (not altering text)

C89 S. 71 modified (31.7.2014) by The Data Retention Regulations 2014 (S.I. 2014/2042), regs. 1(2), 10(3), 15(7)

C90 S. 71(2) modified (31.7.2014) by The Data Retention Regulations 2014 (S.I. 2014/2042), regs. 1(2), 10(2), 15(7)

C91 S. 71(10) modified (temp.) (29.5.2018) by The Investigatory Powers Act 2016 (Commencement No. 5 and Transitional and Saving Provisions) Regulations 2018 (S.I. 2018/652), reg. 19(4)

Commencement Information

I6 S. 71 not in force at Royal Assent see s. 83(2); s. 71 in force for certain purposes at 25.9.2000 and 2.10.2000 by S.I. 2000/2543, arts. 2, 3; s. 71 in force for certain other purposes at 13.8.2001 by S.I. 2001/2727, art. 2; s. 71 in force for further certain purposes at 1.10.2007 by S.I. 2007/2196, art. 2(h)

Marginal Citations

M52 1994 c. 13.

M53 1997 c. 50.

72 Effect of codes of practice. U.K.

(1) A person exercising or performing any power or duty in relation to which provision may be made by a code of practice under section 71 shall, in doing so, have regard to the provisions (so far as they are applicable) of every code of practice for the time being in force under that section.

(2) A failure on the part of any person to comply with any provision of a code of practice for the time being in force under section 71 shall not of itself render him liable to any criminal or civil proceedings.

(3) A code of practice in force at any time under section 71 shall be admissible in evidence in any criminal or civil proceedings.

(4) If any provision of a code of practice issued or revised under section 71 appears to—

(a) the court or tribunal conducting any civil or criminal proceedings,

(b) the Tribunal,

[F402 (ba) the Investigatory Powers Commissioner for Northern Ireland carrying out functions under this Act, or]

[F402 (bb) the Investigatory Powers Commissioner or any other Judicial Commissioner carrying out functions under this Act, the Investigatory Powers Act 2016 or the Police Act 1997,]

to be relevant to any question arising in the proceedings, or in connection with the exercise of that jurisdiction or the carrying out of those functions, in relation to a time when it was in force, that provision of the code shall be taken into account in determining that question.

F403 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F402 S. 72(4)(ba)(bb) substituted (1.9.2017) for s. 72(4)(c)-(e) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 82(2) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(j)

F403 S. 72(5) omitted (1.9.2017) by virtue of Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 82(3) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(j)

Modifications etc. (not altering text)

C92 S. 72(4) modified (31.7.2014) by The Data Retention Regulations 2014 (S.I. 2014/2042), regs. 1(2), 10(4), 15(7)

Commencement Information

I7 S. 72 not in force at Royal Assent see s. 83(2); s. 72 in force for certain purposes at 25.9.2000 and s. 72 in force at 2.10.2000 for certain other purposes by S.I. 2000/2543, arts. 2, 3; s. 72 in force for certain other purposes at 13.8.2001 by S.I. 2001/2727, art. 2; s. 72 in force for further certain purposes at 1.10.2007 by S.I. 2007/2196, art. 2(h)

Part V U.K. Miscellaneous and supplemental

Miscellaneous U.K.

73 Conduct in relation to wireless telegraphy. U.K.

F404 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F404 S. 73 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), ss. 125, 126, Sch. 9 Pt. 1 (with Sch. 8 Pt. 1)

74 Warrants under the Intelligence Services Act 1994. U.K.

(1) In subsection (2) of section 5 of the M54 Intelligence Services Act 1994 (the circumstances in which the Secretary of State may issue a warrant authorising interference with property or wireless telegraphy)—

(a) in paragraph (a), for “on the ground that it is likely to be of substantial value in” there shall be substituted “for the purpose of”; and

(b) for paragraph (b) there shall be substituted—

“(b) is satisfied that the taking of the action is proportionate to what the action seeks to achieve;”.

(2) After that subsection, there shall be inserted—

“(2A) The matters to be taken into account in considering whether the requirements of subsection (2)(a) and (b) are satisfied in the case of any warrant shall include whether what it is thought necessary to achieve by the conduct authorised by the warrant could reasonably be achieved by other means.”

(3) In each of sections 6(1)(b) and 7(5)(b) of that Act (warrants issued under the hand of a senior official of the Secretary of State’s department), the words “of his department” shall be omitted.

(4) In section 11 of that Act (interpretation), for paragraph (1)(d) there shall be substituted—

“(d) “senior official” has the same meaning as in the Regulation of Investigatory Powers Act 2000;”.

Marginal Citations

M54 1994 c. 13.

75 Authorisations under Part III of the Police Act 1997. U.K.

(1) Section 93 of the M55 Police Act 1997 (authorisations to interfere with property etc.) shall be amended as follows.

(2) In subsection (1) (the action that the authorising officer may authorise), for “or” at the end of paragraph (a) there shall be substituted—

“(ab) the taking of such action falling within subsection (1A), in respect of property outside the relevant area, as he may specify, or”.

(3) After that subsection there shall be inserted—

“(1A) The action falling within this subsection is action for maintaining or retrieving any equipment, apparatus or device the placing or use of which in the relevant area has been authorised under this Part or Part II of the Regulation of Investigatory Powers Act 2000 or under any enactment contained in or made under an Act of the Scottish Parliament which makes provision equivalent to that made by Part II of that Act of 2000.

(1B) Subsection (1) applies where the authorising officer is a customs officer with the omission of—

(a) the words “in the relevant area”, in each place where they occur; and

(b) paragraph (ab).”

(4) In subsection (2) (the grounds on which action may be authorised)—

(a) in paragraph (a), for the words from “on the ground” to “detection of” there shall be substituted “for the purpose of preventing or detecting”; and

(b) for paragraph (b) there shall be substituted—

“(b) that the taking of the action is proportionate to what the action seeks to achieve.”

(5) After subsection (2) there shall be inserted—

“(2A) Subsection (2) applies where the authorising officer is the Chief Constable or the Deputy Chief Constable of the Royal Ulster Constabulary as if the reference in subsection (2)(a) to preventing or detecting serious crime included a reference to the interests of national security.

(2B) The matters to be taken into account in considering whether the requirements of subsection (2) are satisfied in the case of any authorisation shall include whether what it is thought necessary to achieve by the authorised action could reasonably be achieved by other means.”

(6) In subsection (5) (the meaning of authorising officer)—

(a) after paragraph (e) there shall be inserted—

“(ea) the Chief Constable of the Ministry of Defence Police;

(eb) the Provost Marshal of the Royal Navy Regulating Branch;

(ec) the Provost Marshal of the Royal Military Police;

(ed) the Provost Marshal of the Royal Air Force Police;

(ee) the Chief Constable of the British Transport Police;”;

(b) F405 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) in paragraph (h), for the word “the”, in the first place where it occurs, there shall be substituted “any”.

(7) In subsection (6) (the meaning of relevant area), after paragraph (c) there shall be inserted—

“(ca) in relation to a person within paragraph (ea), means any place where, under section 2 of the M56 Ministry of Defence Police Act 1987, the members of the Ministry of Defence Police have the powers and privileges of a constable;

(cb) in relation to a person within paragraph (ee), means the United Kingdom;”.

(8) After that subsection there shall be inserted—

“(6A) For the purposes of any authorisation by a person within paragraph (eb), (ec) or (ed) of subsection (5) property is in the relevant area or action in respect of wireless telegraphy is taken in the relevant area if, as the case may be—

(a) the property is owned, occupied, in the possession of or being used by a person subject to service discipline; or

(b) the action is taken in relation to the use of wireless telegraphy by such a person.

(6B) For the purposes of this section a person is subject to service discipline—

(a) in relation to the Royal Navy Regulating Branch, if he is subject to the M57 Naval Discipline Act 1957 or is a civilian to whom Parts I and II of that Act for the time being apply by virtue of section 118 of that Act ;

(b) in relation to the Royal Military Police, if he is subject to military law or is a civilian to whom Part II of the M58 Army Act 1955 for the time being applies by virtue of section 209 of that Act; and

(c) in relation to the Royal Air Force Police, if he is subject to air-force law or is a civilian to whom Part II of the M59 Air Force Act 1955 for the time being applies by virtue of section 209 of that Act.”

Textual Amendments

F405 S. 75(6)(b) repealed (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 174, 178, Sch. 4 para. 153, Sch. 17; S.I. 2006/378, art. 4(1), Sch. paras. 10, 13(hh) (subject to art. 4(2)-(7))

Marginal Citations

M55 1997 c. 50.

M56 1987 c. 4.

M57 1957 c. 53.

M58 1955 c. 18.

M59 1955 c. 19.

76 Surveillance etc. operations beginning in Scotland. U.K.

(1) Subject to subsection (2), where—

(a) an authorisation under the relevant Scottish legislation has the effect of authorising the carrying out in Scotland of the conduct described in the authorisation,

(b) the conduct so described is or includes conduct to which Part II of this Act applies, and

(c) circumstances arise by virtue of which some or all of the conduct so described can for the time being be carried out only outwith Scotland,

section 27 of this Act shall have effect for the purpose of making lawful the carrying out outwith Scotland of the conduct so described as if the authorisation, so far as is it relates to conduct to which that Part applies, were an authorisation duly granted under that Part.

(2) Where any such circumstances as are mentioned in paragraph (c) of subsection (1) so arise as to give effect outwith Scotland to any authorisation granted under the relevant Scottish legislation, that authorisation shall not authorise any conduct outwith Scotland at any time after the end of the period of three weeks beginning with the time when the circumstances arose.

(3) Subsection (2) is without prejudice to the operation of subsection (1) in relation to any authorisation on the second or any subsequent occasion on which any such circumstances as are mentioned in subsection (1)(c) arise while the authorisation remains in force.

(4) In this section “the relevant Scottish legislation” means an enactment contained in or made under an Act of the Scottish Parliament which makes provision, corresponding to that made by Part II, for the authorisation of conduct to which that Part applies.

[F406 76A Foreign surveillance operations E+W+N.I.

(1) This section applies where—

(a) a foreign police or customs officer is carrying out relevant surveillance outside the United Kingdom which is lawful under the law of the country or territory in which it is being carried out;

(b) circumstances arise by virtue of which the surveillance can for the time being be carried out only in the United Kingdom; and

(c) it is not reasonably practicable in those circumstances for a United Kingdom officer to carry out the surveillance in the United Kingdom in accordance with an authorisation under Part 2 or the Regulation of Investigatory Powers (Scotland) Act 2000.

(2) “Relevant surveillance” means surveillance which—

(a) is carried out in relation to a person who is suspected of having committed a relevant crime; and

(b) is, for the purposes of Part 2, directed surveillance or intrusive surveillance.

(3) “Relevant crime” means crime which—

(a) falls within Article 40(7) of the Schengen Convention; or

(b) is crime for the purposes of any other international agreement to which the United Kingdom is a party and which is specified for the purposes of this section in an order made by the Secretary of State with the consent of the Scottish Ministers.

(4) Relevant surveillance carried out by the foreign police or customs officer in the United Kingdom during the permitted period is to be lawful for all purposes if—

(a) the condition mentioned in subsection (6) is satisfied;

(b) the officer carries out the surveillance only in places to which members of the public have or are permitted to have access, whether on payment or otherwise; and

(c) conditions specified in any order made by the Secretary of State with the consent of the Scottish Ministers are satisfied in relation to its carrying out;

but no surveillance is lawful by virtue of this subsection if the officer subsequently seeks to stop and question the person in the United Kingdom in relation to the relevant crime.

(5) The officer is not to be subject to any civil liability in respect of any conduct of his which is incidental to any surveillance that is lawful by virtue of subsection (4).

(6) The condition in this subsection is satisfied if, immediately after the officer enters the United Kingdom—

(a) he notifies a person designated by the [F407 Director General of the National Crime Agency] of that fact; and

(b) (if the officer has not done so before) he requests an application to be made for an authorisation under Part 2, or the Regulation of Investigatory Powers (Scotland) Act 2000, for the carrying out of the surveillance.

(7) “The permitted period” means the period of five hours beginning with the time when the officer enters the United Kingdom.

(8) But a person designated by an order made by the Secretary of State may notify the officer that the surveillance is to cease being lawful by virtue of subsection (4) when he gives the notification.

(9) The Secretary of State is not to make an order under subsection (4) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(10) In this section references to a foreign police or customs officer are to a police or customs officer who, in relation to a country or territory other than the United Kingdom, is an officer for the purposes of—

(a) Article 40 of the Schengen Convention; or

(b) any other international agreement to which the United Kingdom is a party and which is specified for the purposes of this section in an order made by the Secretary of State with the consent of the Scottish Ministers.

(11) In this section—

• “the Schengen Convention” means the Convention implementing the Schengen Agreement of 14th June 1985;

• “United Kingdom officer” means—

  (a)

  a member of a police force;

  (b)

  [F408 a National Crime Agency officer;]

  (c)

  F409 ...

  (d)

  [F410 an officer of Revenue and Customs.]]

Extent Information

E1 This version extends to England, Wales and Northern Ireland only; a separate version has been created for Scotland only

Textual Amendments

F406 S. 76A inserted (26.4.2004) by Crime (International Co-operation) Act 2003 (c. 32), ss. 83, 94; S.I. 2004/786, art. 3(1)(2)

F407 Words in s. 76A(6)(a) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 98(2); S.I. 2013/1682, art. 3(v)

F408 Words in s. 76A(11) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 98(3); S.I. 2013/1682, art. 3(v)

F409 Words in s. 76A(11) omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(23)

F410 Words in s. 76A(11) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 26; S.I. 2008/219, art. 2(b)

76A Foreign surveillance operations S

(1) This section applies where—

(a) a foreign police or customs officer is carrying out relevant surveillance outside the United Kingdom which is lawful under the law of the country or territory in which it is being carried out;

(b) circumstances arise by virtue of which the surveillance can for the time being be carried out only in the United Kingdom; and

(c) it is not reasonably practicable in those circumstances for a United Kingdom officer to carry out the surveillance in the United Kingdom in accordance with an authorisation under Part 2 or the Regulation of Investigatory Powers (Scotland) Act 2000.

(2) “Relevant surveillance” means surveillance which—

(a) is carried out in relation to a person who is suspected of having committed a relevant crime; and

(b) is, for the purposes of Part 2, directed surveillance or intrusive surveillance.

(3) “Relevant crime” means crime which—

(a) falls within Article 40(7) of the Schengen Convention; or

(b) is crime for the purposes of any other international agreement to which the United Kingdom is a party and which is specified for the purposes of this section in an order made by the Secretary of State with the consent of the Scottish Ministers.

(4) Relevant surveillance carried out by the foreign police or customs officer in the United Kingdom during the permitted period is to be lawful for all purposes if—

(a) the condition mentioned in subsection (6) is satisfied;

(b) the officer carries out the surveillance only in places to which members of the public have or are permitted to have access, whether on payment or otherwise; and

(c) conditions specified in any order made by the Secretary of State with the consent of the Scottish Ministers are satisfied in relation to its carrying out;

but no surveillance is lawful by virtue of this subsection if the officer subsequently seeks to stop and question the person in the United Kingdom in relation to the relevant crime.

(5) The officer is not to be subject to any civil liability in respect of any conduct of his which is incidental to any surveillance that is lawful by virtue of subsection (4).

(6) The condition in this subsection is satisfied if, immediately after the officer enters the United Kingdom—

(a) he notifies a person designated by the [F407 Director General of the National Crime Agency] of that fact; and

(b) (if the officer has not done so before) he requests an application to be made for an authorisation under Part 2, or the Regulation of Investigatory Powers (Scotland) Act 2000, for the carrying out of the surveillance.

(7) “The permitted period” means the period of five hours beginning with the time when the officer enters the United Kingdom.

(8) But a person designated by an order made by the Secretary of State may notify the officer that the surveillance is to cease being lawful by virtue of subsection (4) when he gives the notification.

(9) The Secretary of State is not to make an order under subsection (4) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(10) In this section references to a foreign police or customs officer are to a police or customs officer who, in relation to a country or territory other than the United Kingdom, is an officer for the purposes of—

(a) Article 40 of the Schengen Convention; or

(b) any other international agreement to which the United Kingdom is a party and which is specified for the purposes of this section in an order made by the Secretary of State with the consent of the Scottish Ministers.

(11) In this section—

• “the Schengen Convention” means the Convention implementing the Schengen Agreement of 14th June 1985;

• “United Kingdom officer” means—

  (a)

  a member of a police force;

  (b)

  [F408 a National Crime Agency officer;]

  (c)

  F409 ...

  (d)

  [F410 an officer of Revenue and Customs.]

Extent Information

E2 This version extends to Scotland only; a separate version has been created for England, Wales and Northern Ireland only

Textual Amendments

F407 Words in s. 76A(6)(a) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 98(2); S.I. 2013/1682, art. 3(v)

F408 Words in s. 76A(11) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 98(3); S.I. 2013/1682, art. 3(v)

F409 Words in s. 76A(11) omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(23)

F410 Words in s. 76A(11) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 26; S.I. 2008/219, art. 2(b)

Modifications etc. (not altering text)

C96 S. 76A(11) modified (S.) (1.4.2007) by The Police, Public Order and Criminal Justice (Scotland) Act 2006 (Consequential Provisions and Modifications) Order 2007 (S.I. 2007/1098), arts. 1(3), 6, Sch. para. 4(16)

Supplemental U.K.

77 Ministerial expenditure etc. U.K.

There shall be paid out of money provided by Parliament—

(a) any expenditure incurred by the Secretary of State for or in connection with the carrying out of his functions under this Act; and

(b) any increase attributable to this Act in the sums which are payable out of money so provided under any other Act.

[F411 77A Procedure for order of sheriff under section F412 ... 32A: Scotland U.K.

(1) This section applies to an application to the sheriff for an order under section F413 ... 32A.

(2) Rules of court must make provision for the purposes of ensuring that an application to which this section applies is dealt with in private and must, in particular—

(a) require the sheriff to determine an application in private,

(b) secure that any hearing is to be held in private, and

(c) ensure that notice of an application (or of any order being made) is not given to—

(i) the person to whom the authorisation or notice which is the subject of the application or order relates, or

(ii) such a person's representatives.

(3) The Court of Session's power under section 32 of the Sheriff Courts (Scotland) Act 1971 to regulate and prescribe the procedure and practice to be followed in relation to an application to which this section applies is subject to, but is not otherwise constrained by, [F414 section 32B] and this section.

Textual Amendments

F411 Ss. 77A, 77B inserted (1.11.2012 for specified purposes) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 9 para. 15 (with s. 97); S.I. 2012/2075, art. 4(e)

F412 Words in s. 77A heading omitted (coming into force in accordance with reg. 1(4)(e)(5) of the amending S.I.) by virtue of The Data Retention and Acquisition Regulations 2018 (S.I. 2018/1123), Sch. 2 para. 1(2)(a)

F413 Words in s. 77A(1) omitted (coming into force in accordance with reg. 1(4)(e)(5) of the amending S.I.) by virtue of The Data Retention and Acquisition Regulations 2018 (S.I. 2018/1123), Sch. 2 para. 1(2)(b)

F414 Words in s. 77A(3) substituted (coming into force in accordance with reg. 1(4)(e)(5) of the amending S.I.) by The Data Retention and Acquisition Regulations 2018 (S.I. 2018/1123), Sch. 2 para. 1(2)(c)

77B Procedure for order of district judge under section F415 ... 32A: Northern Ireland U.K.

(1) The Lord Chancellor may by order make further provision about the procedure and practice to be followed in relation to an application to a district judge (magistrates' courts) in Northern Ireland for an order under section F416 ... 32A.

(2) Such an order may, in particular, provide—

(a) for the manner in which, and time within which, an application may be made,

(b) that the district judge (magistrates' courts) is to determine an application—

(i) in chambers,

(ii) in the absence of the person to whom the authorisation or notice which is the subject of the application relates,

(c) that any hearing is to be held in private,

(d) that notice of an order given is not to be given to—

(i) the person to whom the authorisation or notice which is the subject of the order relates, or

(ii) such a person's legal representatives.

(3) An order of the Lord Chancellor under this section may not make provision which, if it were contained in an Act of the Northern Ireland Assembly, would be within the legislative competence of the Northern Ireland Assembly and would deal with a transferred matter (within the meaning of section 4(1) of the Northern Ireland Act 1998).

(4) The power of the Magistrates' Courts Rules Committee under Article 13 of the Magistrates' Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)) to regulate and prescribe the procedure and practice to be followed in relation to an application to a district judge (magistrates' courts) in Northern Ireland for an order under section F417 ... 32A is subject to, but is not otherwise constrained by, [F418 section 32B] and any order made under this section.]

Textual Amendments

F411 Ss. 77A, 77B inserted (1.11.2012 for specified purposes) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 9 para. 15 (with s. 97); S.I. 2012/2075, art. 4(e)

F415 Words in s. 77B heading omitted (coming into force in accordance with reg. 1(4)(e)(5) of the amending S.I.) by virtue of The Data Retention and Acquisition Regulations 2018 (S.I. 2018/1123), Sch. 2 para. 1(3)(a)

F416 Words in s. 77B(1) omitted (coming into force in accordance with reg. 1(4)(e)(5) of the amending S.I.) by virtue of The Data Retention and Acquisition Regulations 2018 (S.I. 2018/1123), Sch. 2 para. 1(3)(b)

F417 Words in s. 77B(4) omitted (coming into force in accordance with reg. 1(4)(e)(5) of the amending S.I.) by virtue of The Data Retention and Acquisition Regulations 2018 (S.I. 2018/1123), Sch. 2 para. 1(3)(c)(i)

F418 Words in s. 77B(4) substituted (coming into force in accordance with reg. 1(4)(e)(5) of the amending S.I.) by The Data Retention and Acquisition Regulations 2018 (S.I. 2018/1123), Sch. 2 para. 1(3)(c)(ii)

78 Orders, regulations and rules. U.K.

(1) This section applies to any power of the Secretary of State [F419 or the Lord Chancellor] to make any order, regulations or rules under any provision of this Act.

(2) The powers to which this section applies shall be exercisable by statutory instrument.

(3) A statutory instrument which contains any order made in exercise of a power to which this section applies (other than the power to appoint a day under section 83(2)) but which contains neither—

(a) an order a draft of which has been approved for the purposes of section F420 ... 22(9),[F421 23A(6),] 25(5), 28(5), 29(6), 30(7), [F422 32A(7),] 35(5), 41(6), 47(2), 66(3), 67(11) [F423 , 71(9) or 76A(9)] nor

(b) the order to which section 35(7) applies,

shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(4) A statutory instrument containing any regulations made in exercise of a power to which this section applies shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(5) Any order, regulations or rules made in exercise of a power to which this section applies may—

(a) make different provisions for different cases;

(b) contain such incidental, supplemental, consequential and transitional provision as the Secretary of State [F424 or (as the case may be) the Lord Chancellor] thinks fit.

Textual Amendments

F419 Words in s. 78(1) inserted (1.11.2012) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 9 para. 16(a) (with s. 97); S.I. 2012/2075, art. 4(d)

F420 Words in s. 78(3)(a) omitted (12.3.2018) by virtue of Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 48 (with Sch. 9 paras. 7, 8, 10); S.I. 2018/341, reg. 2(o)

F421 Words in s. 78(3)(a) inserted (1.11.2012) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 9 para. 16(b)(i) (with s. 97); S.I. 2012/2075, art. 4(d)

F422 Words in s. 78(3)(a) inserted (1.11.2012) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 9 para. 16(b)(ii) (with s. 97); S.I. 2012/2075, art. 4(d)

F423 Words in s. 78(3)(a) substituted (26.4.2004) by Crime (International Co-operation) Act 2003 (c. 32), ss. 91, 94, Sch. 5 para. 80; S.I. 2004/786, art. 3(1)(2)

F424 Words in s. 78(5) inserted (1.11.2012) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 9 para. 16(c) (with s. 97); S.I. 2012/2075, art. 4(d)

79 Criminal liability of directors etc. U.K.

(1) Where an offence under any provision of this Act other than a provision of Part III is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—

(a) a director, manager, secretary or other similar officer of the body corporate, or

(b) any person who was purporting to act in any such capacity,

he (as well as the body corporate) shall be guilty of that offence and liable to be proceeded against and punished accordingly.

(2) Where an offence under any provision of this Act other than a provision of Part III—

(a) is committed by a Scottish firm, and

(b) is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner of the firm,

he (as well as the firm) shall be guilty of that offence and liable to be proceeded against and punished accordingly.

(3) In this section “director”, in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.

80 General saving for lawful conduct. U.K.

Nothing in any of the provisions of this Act by virtue of which conduct of any description is or may be authorised by any warrant, authorisation or notice, or by virtue of which information may be obtained in any manner, shall be construed—

(a) as making it unlawful to engage in any conduct of that description which is not otherwise unlawful under this Act and would not be unlawful apart from this Act;

(b) as otherwise requiring—

(i) the issue, grant or giving of such a warrant, authorisation or notice, or

(ii) the taking of any step for or towards obtaining the authority of such a warrant, authorisation or notice,

before any such conduct of that description is engaged in; or

(c) as prejudicing any power to obtain information by any means not involving conduct that may be authorised under this Act.

81 General interpretation. U.K.

(1) In this Act—

• “apparatus” includes any equipment, machinery or device and any wire or cable;

• “Assistant Commissioner of Police of the Metropolis” includes the Deputy Commissioner of Police of the Metropolis;

• F425 ...

• “civil proceedings” means any proceedings in or before any court or tribunal that are not criminal proceedings;

• “communication” includes—

  (a)

  (except in the definition of “postal service” in section 2(1)) anything transmitted by means of a postal service;

  (b)

  anything comprising speech, music, sounds, visual images or data of any description; and

  (c)

  signals serving either for the impartation of anything between persons, between a person and a thing or between things or for the actuation or control of any apparatus;

• “criminal”, in relation to any proceedings or prosecution, shall be construed in accordance with subsection (4);

• F426 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• “document” includes a map, plan, design, drawing, picture or other image;

• “enactment” includes—

  (a)

  an enactment passed after the passing of this Act; and

  (b)

  an enactment contained in Northern Ireland legislation;

• “GCHQ” has the same meaning as in the M60 Intelligence Services Act 1994;

• “Her Majesty’s forces” has the same meaning as in the [F427 Armed Forces Act 2006];

• “intelligence service” means the Security Service, the Secret Intelligence Service or GCHQ;

• “interception” and cognate expressions shall be construed (so far as it is applicable) in accordance with [F428 section 2] [F428 sections 4 and 5 of the Investigatory Powers Act 2016];

• “interception warrant” means a warrant under section 5;

• [F429 “the Investigatory Powers Commissioner” and “Judicial Commissioner” have the same meanings as in the Investigatory Powers Act 2016 (see section 263(1) of that Act);]

• [F430 “justice of the peace” does not include a justice of the peace in Northern Ireland;]

• “legal proceedings” means civil or criminal proceedings in or before any court or tribunal [F431 or proceedings before an officer in respect of a service offence within the meaning of the Armed Forces Act 2006];

• “modification” includes alterations, additions and omissions, and cognate expressions shall be construed accordingly;

• F425 ...

• “person” includes any organisation and any association or combination of persons;

• “police force” means any of the following—

  (a)

  any police force maintained under section 2 of the M61 Police Act 1996 (police forces in England and Wales outside London);

  (b)

  the metropolitan police force;

  (c)

  the City of London police force;

  (d)

  [F432 the Police Service of Scotland;]

  (e)

  the Royal Ulster Constabulary;

  (f)

  the Ministry of Defence Police;

  (g)

  the [F433 Royal Navy Police];

  (h)

  the Royal Military Police;

  (i)

  the Royal Air Force Police;

  (j)

  the British Transport Police;

• [F434 “postal service” and “public postal service” have the meanings given by section 2(1);] [F434 “postal service” has the same meaning as in the Investigatory Powers Act 2016 (see section 262(7) of that Act);]

• “private telecommunication system”, “public telecommunications service” and “public telecommunication system” have the meanings given by section 2(1);

• “public authority” means any public authority within the meaning of section 6 of the M62 Human Rights Act 1998 (acts of public authorities) other than a court or tribunal;

• “senior official” means, subject to subsection (7), a member of the Senior Civil Service or a member of the Senior Management Structure of Her Majesty’s Diplomatic Service;

• “statutory”, in relation to any power or duty, means conferred or imposed by or under any enactment or subordinate legislation;

• “subordinate legislation” means any subordinate legislation (within the meaning of the M63 Interpretation Act 1978) or any statutory rules (within the meaning of the M64 Statutory Rules (Northern Ireland) Order 1979);

• F425 ...

• “telecommunication system” and “telecommunications service” have the meanings given by section 2(1);

• “the Tribunal” means the tribunal established under section 65;

• “wireless telegraphy” has the same meaning as in the [F435 the Wireless Telegraphy Act 2006] and, in relation to wireless telegraphy, “interfere” has the same meaning as in that Act;

• “working day” means any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the M65 Banking and Financial Dealings Act 1971 in any part of the United Kingdom.

(2) In this Act—

(a) references to crime are references to conduct which constitutes one or more criminal offences or is, or corresponds to, any conduct which, if it all took place in any one part of the United Kingdom would constitute one or more criminal offences; and

(b) references to serious crime are references to crime that satisfies the test in subsection (3)(a) or (b).

(3) Those tests are—

(a) that the offence or one of the offences that is or would be constituted by the conduct is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more;

(b) that the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose.

(4) In this Act “criminal proceedings” includes—[F436 proceedings before a court in respect of a service offence within the meaning of the Armed Forces Act 2006,] and references in this Act to criminal prosecutions shall be construed accordingly.

(5) For the purposes of this Act detecting crime shall be taken to include—

(a) establishing by whom, for what purpose, by what means and generally in what circumstances any crime was committed; and

(b) the apprehension of the person by whom any crime was committed;

and any reference in this Act to preventing or detecting serious crime shall be construed accordingly, except that, in Chapter I of Part I, it shall not include a reference to gathering evidence for use in any legal proceedings.

(6) In this Act—

(a) references to a person holding office under the Crown include references to any servant of the Crown and to any member of Her Majesty’s forces; and

(b) references to a member of a police force, in relation to the [F437 Royal Navy Police], the Royal Military Police or the Royal Air Force Police, do not include references to any member of [F438 that force who is not for the time being attached to or serving either with that force or with another of those police forces].

(7) If it appears to the Secretary of State that it is necessary to do so in consequence of any changes to the structure or grading of the [F439 statutory civil service (or any part of it)], he may by order make such amendments of the definition of “senior official” in subsection (1) as appear to him appropriate to preserve, so far as practicable, the effect of that definition.

[F440 (8) In subsection (7) “the statutory civil service” means—

(a) the civil service within the meaning of Chapter 1 of Part 1 of the Constitutional Reform and Governance Act 2010 (see section 1(4) of that Act), but

(b) also includes the Government Communications Headquarters.]

[F441 (9) References in this Act to provision which, if it were contained in an Act of the Northern Ireland Assembly, would deal with a Northern Ireland transferred matter or (as the case may be) a transferred matter (see sections 23A(7)(b), 32A(8)(c) and 77B(3)) do not include references to any such provision which would be ancillary to other provision (whether in the Act of the Northern Ireland Assembly or previously enacted) which deals with an excepted or reserved matter (within the meaning given by section 4(1) of the Northern Ireland Act 1998).]

Textual Amendments

F425 Words in s. 81(1) omitted (1.9.2017) by virtue of Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 83(2) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(j)

F426 S. 81(1): definition of "customs officer" repealed (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 92, 94, Sch. 12 para. 27, Sch. 14; S.I. 2008/219, art. 2(d)(ii)

F427 S. 81(1): words in the definition of "Her Majesty's forces" substituted (28.3.2009 for certain purposes, otherwise 30.10.2009) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 175(2)(a); S.I. 2009/812, art. 3 (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F428 Words in s. 81(1) substituted (27.6.2018 for specified purposes) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 6(4) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/652, reg. 12(g)(aa)(ii)

F429 Words in s. 81(1) inserted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 83(3) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(j)

F430 S. 81(1): definition inserted (1.4.2005) by 2002 c. 26, ss. 10, 87, Sch. 4 para. 40; S.R. 2005/109, art. 2, Sch.

F431 S. 81(1): words in the definition of "legal proceedings" inserted (28.3.2009 for certain purposes and otherwise 31.10.2009) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 175(2)(b); S.I. 2009/812, art. 3 (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F432 S. 81(1): para. (d) in the definition of "police force" substituted (1.4.2013) by The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(24)

F433 S. 81(1): words in the definition of "police force" substituted (4.6.2007) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 175(2)(c); S.I. 2007/1442, art. 2(1)

F434 Words in s. 81(1) substituted (27.6.2018 for specified purposes) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 6(5) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/652, reg. 12(g)(bb)(ii)

F435 S. 81(1): words in the definition of "wireless telegraphy" substituted (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), ss. 123, 126, Sch. 7 para. 24

F436 S. 81(4): words substituted (28.3.2009 for certain purposes, otherwise 31.10.2009) for s. 81(4)(a)-(c) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 175(3); S.I. 2009/812, art. 3 (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F437 Words in s. 81(6)(b) substituted (4.6.2007) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 175(4)(a); S.I. 2007/1442, art. 2(1)

F438 Words in s. 81(6)(b) substituted (4.6.2007) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 175(4)(b); S.I. 2007/1442, art. 2(1)

F439 Words in s. 81(7) substituted (11.11.2010) by Constitutional Reform and Governance Act 2010 (c. 25), ss. 19, 52(2), Sch. 2 para. 11(2); S. I. 2010/2703, art. 2(a)

F440 S. 81(8) inserted (11.11.2010) by Constitutional Reform and Governance Act 2010 (c. 25), ss. 19, 52(2), Sch. 2 para. 11(3); S. I. 2010/2703, art. 2(a)

F441 S. 81(9) inserted (1.11.2012) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 9 para. 17 (with s. 97); S.I. 2012/2075, art. 4(d)

Modifications etc. (not altering text)

C93 S. 81(5) applied (25.9.2000) by 1989 c. 5, s. 1(5) (as inserted (25.9.200) by 2000 c. 23, ss. 82, 83(2), Sch. 4 para. 4(1))

S. 81(5) applied (25.9.2000) by 1994 c. 13, s. 11(1A) (as inserted (25.9.2000) by 2000 c. 23, ss. 82, 83(2), Sch. 4 para. 6 (with s. 82(3)))

C94 S. 81(5) applied (1.1.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 42(3), 178; S.I. 2005/3495, art. 2(1)(f) (subject to art. 2(2))

C95 S. 81(5) applied (24.12.2008) by Counter-Terrorism Act 2008, (c. 28), {ss. 21(4)}, 91, 100 (with s. 101(2)); S.I. 2008/3296, art. 2

Marginal Citations

M60 1994 c. 13.

M61 1996 c. 16.

M62 1998 c. 42.

M63 1978 c. 30.

M64 S.I. 1979/1573 (N.I. 12).

M65 1971 c. 80.

82 Amendments, repeals and savings etc. U.K.

(1) The enactments specified in Schedule 4 (amendments consequential on the provisions of this Act) shall have effect with the amendments set out in that Schedule.

(2) The enactments mentioned in Schedule 5 are hereby repealed to the extent specified in the third column of that Schedule.

(3) For the avoidance of doubt it is hereby declared that nothing in this Act F442 . . .affects any power conferred on [F443 a postal operator (within the meaning of [F444 Part 3 of the Postal Services Act 2011])] by or under any enactment to open, detain or delay any postal packet or to deliver any such packet to a person other than the person to whom it is addressed.

F445 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F445 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F445 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F442 Words in s. 82(3) repealed (26.3.2001) by S.I. 2001/1149, art. 3(2), Sch. 2 (with art. 4(11))

F443 Words in s. 82(3) substituted (26.3.2001) by S.I. 2001/1149, art. 3(1), Sch. 1 para. 135(3) (with art. 4(8))

F444 Words in s. 82(3) substituted (1.10.2011) by Postal Services Act 2011 (c. 5), ss. 91, 93(3), Sch. 12 para. 160; S.I. 2011/2329, art. 3(1)

F445 S. 82(4)-(6) omitted (27.6.2018) by virtue of Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 50 (with Sch. 9 paras. 7, 8, 10); S.I. 2018/652, reg. 12(g)(iii)

Commencement Information

I8 S. 82 wholly in force; s. 82 not in force at Royal Assent see s. 83(2); s. 82(1)(2) in force for certain purposes at 25.9.2000 and s. 82 in force to the extent that it is not already in force at 2.10.2000 by S.I. 2000/2543, arts. 2, 3 (subject to transitional provisions in arts. 5, 6)

83 Short title, commencement and extent. U.K.

(1) This Act may be cited as the Regulation of Investigatory Powers Act 2000.

(2) The provisions of this Act, other than this section, shall come into force on such day as the Secretary of State may by order appoint; and different days may be appointed under this subsection for different purposes.

(3) This Act extends to Northern Ireland.

Subordinate Legislation Made

P1 S. 83(2) power partly exercised: different dates appointed for specified provisions by S.I. 2000/2543 (with transitional provisions in art. 5, 6); s. 83(2) power partly excercised: 13.8.2001 appointed for other specified provisions by S.I. 2001/2727; s. 83(2) power partly exercised: 5.1.2004 appointed for specified provisions by {S.I. 2003/3140}, art. 2; s. 83(2) power partly exercised: 1.10.2007 appointed for specified provisions by {S.I. 2007/2196}, art. 2