SCHEDULES

Section 49.

SCHEDULE 2 U.K. Persons having the appropriate permission

Requirement that appropriate permission is granted by a judge U.K.

1 (1) Subject to the following provisions of this Schedule, a person has the appropriate permission in relation to any protected information if, and only if, written permission for the giving of section 49 notices in relation to that information has been granted— U.K.

(a) in England and Wales, by a Circuit judge;

(b) in Scotland, by a sheriff; or

(c) in Northern Ireland, by a county court judge.

(2) Nothing in paragraphs 2 to 5 of this Schedule providing for the manner in which a person may be granted the appropriate permission in relation to any protected information without a grant under this paragraph shall be construed as requiring any further permission to be obtained in a case in which permission has been granted under this paragraph.

Data obtained under warrant etc. U.K.

2 (1) This paragraph applies in the case of protected information falling within section 49(1)(a), (b) or (c) where the statutory power in question is one exercised, or to be exercised, in accordance with— U.K.

(a) a warrant issued by the Secretary of State or a person holding judicial office; F1 ...

(b) an authorisation under Part III of the M1 Police Act 1997 (authorisation of otherwise unlawful action in respect of property)[F2 ; or

(c) a targeted equipment interference warrant issued under section 106 of the Investigatory Powers Act 2016 (powers of law enforcement chiefs to issue warrants to law enforcement officers).]

(2) Subject to sub-paragraphs (3) to (5) and paragraph 6(1), a person has the appropriate permission in relation to that protected information (without any grant of permission under paragraph 1) if—

(a) the warrant or, as the case may be, the authorisation contained the relevant authority’s permission for the giving of section 49 notices in relation to protected information to be obtained under the warrant or authorisation; or

(b) since the issue of the warrant or authorisation, written permission has been granted by the relevant authority for the giving of such notices in relation to protected information obtained under the warrant or authorisation.

(3) Only persons holding office under the Crown, the police [F3 , [F4 the National Crime Agency,]] F5 ... and [F6 Her Majesty's Revenue and Customs] shall be capable of having the appropriate permission in relation to protected information obtained, or to be obtained, under a warrant issued by the Secretary of State.

(4) Only a person who—

(a) was entitled to exercise the power conferred by the warrant, or

(b) is of the description of persons on whom the power conferred by the warrant was, or could have been, conferred,

shall be capable of having the appropriate permission in relation to protected information obtained, or to be obtained, under a warrant issued by a person holding judicial office.

(5) Only the police [F7 , [F8 the National Crime Agency,]] F9 ... and [F6 Her Majesty's Revenue and Customs] shall be capable of having the appropriate permission in relation to protected information obtained, or to be obtained, under an authorisation under Part III of the M2 Police Act 1997 [F10 or under a targeted equipment interference warrant issued under section 106 of the Investigatory Powers Act 2016.]

(6) In this paragraph “the relevant authority”—

(a) in relation to a warrant issued by the Secretary of State, means the Secretary of State;

(b) in relation to a warrant issued by a person holding judicial office, means any person holding any judicial office that would have entitled him to issue the warrant; F11 ...

(c) in relation to protected information obtained under an authorisation under Part III of the M3 Police Act 1997, means (subject to sub-paragraph (7)) an authorising officer within the meaning of section 93 of that Act[F12 ; and

(d) in relation to protected information obtained under a warrant issued under section 106 of the Investigatory Powers Act 2016, means the person who issued the warrant or, if that person was an appropriate delegate in relation to a law enforcement chief, either that person or the law enforcement chief.]

[F13 (6A) In sub-paragraph (6)(d), the references to a law enforcement chief and to an appropriate delegate in relation to a law enforcement chief are to be read in accordance with section 106(5) of the Investigatory Powers Act 2016.]

(7) Section 94 of the M4 Police Act 1997 (power of other persons to grant authorisations in urgent cases) shall apply in relation to—

(a) an application for permission for the giving of section 49 notices in relation to protected information obtained, or to be obtained, under an authorisation under Part III of that Act, and

(b) the powers of any authorising officer (within the meaning of section 93 of that Act) to grant such a permission,

as it applies in relation to an application for an authorisation under section 93 of that Act and the powers of such an officer under that section.

(8) References in this paragraph to a person holding judicial office are references to—

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

(b) any sheriff;

(c) any justice of the peace;

(d) any resident magistrate in Northern Ireland; or

(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.

(9) Protected information that comes into a person’s possession by means of the exercise of any statutory power which—

(a) is exercisable without a warrant, but

(b) is so exercisable in the course of, or in connection with, the exercise of another statutory power for which a warrant is required,

shall not be taken, by reason only of the warrant required for the exercise of the power mentioned in paragraph (b), to be information in the case of which this paragraph applies.

Textual Amendments

F1 Word in Sch. 2 para. 2(1)(a) omitted (5.12.2018) by virtue of Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 66(2)(a) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/1246, reg. 3(l)(i)

F2 Sch. 2 para. 2(1)(c) and word inserted (5.12.2018) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 66(2)(b) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/1246, reg. 3(l)(i)

F3 Words in Sch. 2 para. 2(3) inserted (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 178, Sch. 4 para. 156(2)(a); S.I. 2006/378, art. 4(1), Sch. para. 10 (subject to art. 4(2)-(7))

F4 Words in Sch. 2 para. 2(3) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 100(2); S.I. 2013/1682, art. 3(v)

F5 Word in Sch. 2 para. 2(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(26)(a)

F6 Words in Sch. 2 para. 2(3)(5) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 29(1); S.I. 2008/219, art. 2(b)

F7 Words in Sch. 2 para. 2(5) inserted (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 178, Sch. 4 para. 156(2)(b); S.I. 2006/378, art. 4(1), Sch. para. 10 (subject to art. 4(2)-(7))

F8 Words in Sch. 2 para. 2(5) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 100(2); S.I. 2013/1682, art. 3(v)

F9 Word in Sch. 2 para. 2(5) 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(26)(a)

F10 Words in Sch. 2 para. 2(5) inserted (5.12.2018) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 66(3) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/1246, reg. 3(l)(i)

F11 Word in Sch. 2 para. 2(6)(b) omitted (5.12.2018) by virtue of Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 66(4)(a) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/1246, reg. 3(l)(i)

F12 Sch. 2 para. 2(6)(d) and word inserted (5.12.2018) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 66(4)(b) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/1246, reg. 3(l)(i)

F13 Sch. 2 para. 2(6A) inserted (5.12.2018) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 66(5) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/1246, reg. 3(l)(i)

Modifications etc. (not altering text)

C1 Sch. 2 para. 2(3) 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)

Marginal Citations

M1 1997 c. 50.

M2 1997 c. 50.

M3 1997 c. 50.

M4 1997 c. 50.

Data obtained by the intelligence services under statute but without a warrant U.K.

3 (1) This paragraph applies in the case of protected information falling within section 49(1)(a), (b) or (c) which— U.K.

(a) has come into the possession of any of the intelligence services or is likely to do so; and

(b) is not information in the case of which paragraph 2 applies.

(2) Subject to paragraph 6(1), a person has the appropriate permission in relation to that protected information (without any grant of permission under paragraph 1) if written permission for the giving of section 49 notices in relation to that information has been granted by the Secretary of State.

(3) Sub-paragraph (2) applies where the protected information is in the possession, or (as the case may be) is likely to come into the possession, of both—

(a) one or more of the intelligence services, and

(b) a public authority which is not one of the intelligence services,

as if a grant of permission under paragraph 1 were unnecessary only where the application to the Secretary of State for permission under that sub-paragraph is made by or on behalf of a member of one of the intelligence services.

Data obtained under statute by other persons but without a warrant U.K.

4 (1) This paragraph applies— U.K.

(a) in the case of protected information falling within section 49(1)(a), (b) or (c) which is not information in the case of which paragraph 2 or 3 applies; and

(b) in the case of protected information falling within section 49(1)(d) which is not information also falling within section 49(1)(a), (b) or (c) in the case of which paragraph 3 applies.

(2) Subject to paragraph 6, where—

(a) the statutory power was exercised, or is likely to be exercised, by the police, [F14 the National Crime Agency], F15 ... [F16 Her Majesty's Revenue and Customs] or a member of Her Majesty’s forces, or

(b) the information was provided or disclosed, or is likely to be provided or disclosed, to the police, [F14 the National Crime Agency], F15 ... [F16 Her Majesty's Revenue and Customs] or a member of Her Majesty’s forces, or

(c) the information is in the possession of, or is likely to come into the possession of, the police, [F14 the National Crime Agency], F15 ... [F16 Her Majesty's Revenue and Customs] or a member of Her Majesty’s forces,

the police, [F14 the National Crime Agency], F15 ... [F16 Her Majesty's Revenue and Customs] or, as the case may be, members of Her Majesty’s forces have the appropriate permission in relation to the protected information, without any grant of permission under paragraph 1.

(3) In any other case a person shall not have the appropriate permission by virtue of a grant of permission under paragraph 1 unless he is a person falling within sub-paragraph (4).

(4) A person falls within this sub-paragraph if, as the case may be—

(a) he is the person who exercised the statutory power or is of the description of persons who would have been entitled to exercise it;

(b) he is the person to whom the protected information was provided or disclosed, or is of a description of person the provision or disclosure of the information to whom would have discharged the statutory duty; or

(c) he is a person who is likely to be a person falling within paragraph (a) or (b) when the power is exercised or the protected information provided or disclosed.

Textual Amendments

F14 Words in Sch. 2 para. 4(2) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 100(3); S.I. 2013/1682, art. 3(v)

F15 Word in Sch. 2 para. 4(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(26)(b)

F16 Words in Sch. 2 para. 4(2) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 29(1); S.I. 2008/219, art. 2(b)

Modifications etc. (not altering text)

C2 Sch. 2 para. 4(2) 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)

Data obtained without the exercise of statutory powers U.K.

5 (1) This paragraph applies in the case of protected information falling within section 49(1)(e). U.K.

(2) Subject to paragraph 6, a person has the appropriate permission in relation to that protected information (without any grant of permission under paragraph 1) if—

(a) the information is in the possession of any of the intelligence services, or is likely to come into the possession of any of those services; and

(b) written permission for the giving of section 49 notices in relation to that information has been granted by the Secretary of State.

(3) Sub-paragraph (2) applies where the protected information is in the possession, or (as the case may be) is likely to come into the possession, of both—

(a) one or more of the intelligence services, and

(b) the police, [F17 the National Crime Agency] F18 ... or [F19 Her Majesty's Revenue and Customs],

as if a grant of permission under paragraph 1 were unnecessary only where the application to the Secretary of State for permission under that sub-paragraph is made by or on behalf of a member of one of the intelligence services.

Textual Amendments

F17 Words in Sch. 2 para. 5(3)(b) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 100(4); S.I. 2013/1682, art. 3(v)

F18 Word in Sch. 2 para. 5(3)(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(26)(c)

F19 Words in Sch. 2 para. 5(3)(b) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 29(1); S.I. 2008/219, art. 2(b)

General requirements relating to the appropriate permission U.K.

6 (1) A person does not have the appropriate permission in relation to any protected information unless he is either— U.K.

(a) a person who has the protected information in his possession or is likely to obtain possession of it; or

(b) a person who is authorised (apart from this Act) to act on behalf of such a person.

(2) Subject to sub-paragraph (3), a constable does not by virtue of paragraph 1, 4 or 5 have the appropriate permission in relation to any protected information unless—

(a) he is of or above the rank of superintendent; or

(b) permission to give a section 49 notice in relation to that information has been granted by a person holding the rank of superintendent, or any higher rank.

(3) In the case of protected information that has come into the police’s possession by means of the exercise of powers conferred by—

(a) [F20 section 47A] of the M5 Terrorism Act 2000 (power to stop and search) [F21 (including that section as it had effect by virtue of the Terrorism Act 2000 (Remedial) Order 2011 (S.I. 2011/631)], or

(b) [F22 section 44 of the Terrorism Act 2000 or] section 13A or 13B of the M6 Prevention of Terrorism (Temporary Provisions) Act 1989 (which [F23 previously had effect for similar purposes],

the permission required by sub-paragraph (2) shall not be granted by any person below the rank mentioned in [F24 paragraph 14(1) and (2) of Schedule 6B to that Act of 2000 (see the definition of “senior police officer”),] section 44(4) of that Act of 2000 or, as the case may be, section 13A(1) of that Act of 1989.

[F25 (3A) A [F26 National Crime Agency officer] does not by virtue of paragraph 1, 4 or 5 have the appropriate permission in relation to any protected information unless permission to give a section 49 notice in relation to that information has been granted—

(a) by the Director General; or

(b) by a member of the staff of the Agency of or above such level as the Director General may designate for the purposes of this sub-paragraph.]

F27 (3B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) [F28 An officer of Revenue and Customs] does not by virtue of paragraph 1, 4 or 5 have the appropriate permission in relation to any protected information unless permission to give a section 49 notice in relation to that information has been granted—

(a) by [F29 the Commissioners for Her Majesty's Revenue and Customs]; or

(b) by an officer of [F30 Revenue and Customs] of or above such level as [F31 the Commissioners] may designate for the purposes of this sub-paragraph.

(5) A member of Her Majesty’s forces does not by virtue of paragraph 1, 4 or 5 have the appropriate permission in relation to any protected information unless—

(a) he is of or above the rank of lieutenant colonel or its equivalent; or

(b) permission to give a section 49 notice in relation to that information has been granted by a person holding the rank of lieutenant colonel or its equivalent, or by a person holding a rank higher than lieutenant colonel or its equivalent.

[F32 (6) In sub-paragraph (2) “constable” does not include a constable who is a [F33 National Crime Agency officer] F34 ....]

Textual Amendments

F20 Words in Sch. 2 para. 6(3)(a) substituted (10.7.2012) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 9 para. 27(a)(i) (with s. 97); S.I. 2012/1205, art. 4(k)

F21 Words in Sch. 2 para. 6(3)(a) inserted (10.7.2012) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 9 para. 27(a)(ii) (with s. 97); S.I. 2012/1205, art. 4(k)

F22 Words in Sch. 2 para. 6(3)(b) inserted (10.7.2012) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 9 para. 27(b)(i) (with s. 97); S.I. 2012/1205, art. 4(k)

F23 Words in Sch. 2 para. 6(3)(b) substituted (10.7.2012) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 9 para. 27(b)(ii) (with s. 97); S.I. 2012/1205, art. 4(k)

F24 Words in Sch. 2 para. 6(3) inserted (10.7.2012) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 9 para. 27(c) (with s. 97); S.I. 2012/1205, art. 4(k)

F25 Sch. 2 para. 6(3A) inserted (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 178, Sch. 4 para. 156(5)(a); S.I. 2006/378, art. 4(1), Sch. para. 10 (subject to art. 4(2)-(7))

F26 Words in Sch. 2 para. 6(3A) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 100(5); S.I. 2013/1682, art. 3(v)

F27 Sch. 2 para. 6(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(26)(d)(i)

F28 Words in Sch. 2 para. 6(4) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 29(2)(a); S.I. 2008/219, art. 2(a)

F29 Words in Sch. 2 para. 6(4) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 29(2)(a); S.I. 2008/219, art. 2(b)

F30 Words in Sch. 2 para. 6(4) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 29(2)(a); S.I. 2008/219, art. 2(c)

F31 Words in Sch. 2 para. 6(4) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 29(2)(a); S.I. 2008/219, art. 2(d)

F32 Sch. 2 para. 6(6) added (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 178, Sch. 4 para. 156(5)(b); S.I. 2006/378, art. 4(1), Sch. para. 10 (subject to art. 4(2)-(7))

F33 Words in Sch. 2 para. 6(6) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 100(5); S.I. 2013/1682, art. 3(v)

F34 Words in Sch. 2 para. 6(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(26)(d)(ii)

Modifications etc. (not altering text)

C3 Sch. 2 para. 6(3) modified (18.3.2011) by The Terrorism Act 2000 (Remedial) Order 2011 (S.I. 2011/631), arts. 1, 5, Sch. 2 para. 4

Marginal Citations

M5 2000 c. 11.

M6 1989 c. 4.

Duration of permission U.K.

7 (1) A permission granted by any person under any provision of this Schedule shall not entitle any person to give a section 49 notice at any time after the permission has ceased to have effect. U.K.

(2) Such a permission, once granted, shall continue to have effect (notwithstanding the cancellation, expiry or other discharge of any warrant or authorisation in which it is contained or to which it relates) until such time (if any) as it—

(a) expires in accordance with any limitation on its duration that was contained in its terms; or

(b) is withdrawn by the person who granted it or by a person holding any office or other position that would have entitled him to grant it.

Formalities for permissions granted by the Secretary of State U.K.

8 U.K. A permission for the purposes of any provision of this Schedule shall not be granted by the Secretary of State except—

(a) under his hand; or

(b) in an urgent case in which the Secretary of State has expressly authorised the grant of the permission, under the hand of a senior official.