Necessity and proportionality paras 3.25 to 3.31
Necessity and proportionality
3.25 Exercise of the powers to require disclosure of protected information; disclosure of the means to access such information or to put it into an intelligible form may amount to interference with an individual's right to respect for their private and family life.
3.26 Such interference will be justifiable under Article 8 of the European Convention on Human Rights and in accordance with the Human Rights Act 1998 only if the conduct being required or taking place is both necessary and proportionate and in accordance with the law. The provisions in Part III are designed to meet the requirements that such activities are in accordance with law and to provide guidance to ensure that the activities are, in fact, both necessary and take place in a proportionate manner.
3.27 The person giving appropriate permission and, if different, the person with that permission must believe that the imposition of a disclosure requirement by a notice is necessary. They should consider whether other means to obtain the protected information in an intelligible form have failed, or would be bound to fail, for example that the person in possession of the key has not provided voluntarily the protected information in an intelligible form or would not do so.
3.28 He or she must also believe the imposition of that requirement to be proportionate to what is sought to be achieved by obtaining the disclosure of the protected information in an intelligible form or the disclosure of the means to gain access to the protected information or to put it in an intelligible form - that the disclosure requirement is no more than is required in the circumstances. This involves balancing the extent of the intrusiveness of the interference with an individual's right of respect for their private life against the benefit to the investigation or operation being undertaken by a relevant public authority in the public interest.
3.29 Consideration must also be given to any actual or potential infringement of the privacy of individuals who are not the subject of the investigation or operation. An application for appropriate permission to give a notice should draw attention to any circumstances which give rise to a meaningful degree of collateral intrusion.
3.30 Taking all these considerations into account in a particular case, an interference with the right to respect of individual privacy may still not be justified because the adverse impact on the privacy of an individual or group of individuals is too severe.
3.31 Any conduct that is excessive in the circumstances of both the interference and the aim of the investigation or operation, or is in any way arbitrary will not be proportionate.