RIPA Part III consultation blog

APPROPRIATE PERMISSION FOR THE GIVING OF NOTICES paras 9.1 to 9.3

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APPROPRIATE PERMISSION FOR THE GIVING OF NOTICES

]]> 9.1 Any person using the powers in Part III, and specifically any person giving a section 49 notice, must have appropriate permission to do so. Circumstances in which appropriate permission may be granted or persons have the appropriate permission are described in Schedule 2 to the Act.

9.2 In general the permission to give a notice must be given by a person with at least the same level of authority as that required for the exercise of any power to obtain the protected information. With certain exceptions, the appropriate permission to give a notice should, so far as is practical, be given by the same person authorising, or who authorised, the use of any power to obtain the protected information.

9.3 Appropriate permission can never be given for a notice in respect of protected information that has been obtained unlawfully by a public authority.

Appropriate permission granted by a judicial authority para 9.4 to 9.10

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Appropriate permission granted by a judicial authority

]]> 9.4 Public authorities may always seek appropriate permission for giving a section 49 notice from a judicial authority. Any member of a public authority will have appropriate permission if, and only if, written permission for giving the notice has been granted by:

a Circuit judge, in England and Wales;
a sheriff, in Scotland; or
a county court judge, in Northern Ireland

9.5 Where such a judicial authority has granted appropriate permission to give a section 49 notice, no further permission from any other person is required.

Appropriate permission granted by a person holding judicial office

9.6 Public authorities may obtain appropriate permission for giving a section 49 notice from persons holding judicial office where protected information is likely to be, or has been, obtained under a warrant issued by such a person holding judicial office, that is to say:

any judge of the Crown Court or of the High Court of Justice;
any sheriff;
any justice of the peace;
any resident magistrate in Northern Ireland; or
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.

9.7 Appropriate permission may be given by the person who issues or issued the warrant or by a person holding judicial office who would have been entitled to issue the warrant. Such permission might be granted, for example, in relation to a search warrant or production order under the Police and Criminal Evidence Act 1984 as amended or the Drug Trafficking Act 1994 as amended.

9.8 Any person will have appropriate permission if:

protected information is obtained, the warrant contained explicit permission for giving section 49 notices in relation to protected information to be obtained under the warrant or,
subsequent to the issue of the warrant, written permission is granted for giving section 49 notices in relation to protected information obtained under the warrant.

9.9 Only a person who was entitled to exercise the power conferred by the warrant or who is a person on whom the power conferred by the warrant was, or could have been, conferred may have appropriate permission in relation to protected information obtained, or to be obtained, under a warrant issued by a person holding judicial office.

9.10 Where protected information is obtained under a statutory power without a warrant in the course of, or in connection with, the execution of a warrant containing appropriate permission, or where material unconnected with a search warrant is lawfully seized, for example under section 19 of the Police and Criminal Evidence Act 1984 ('PACE'), appropriate permission for giving a notice in respect of that additional information will be required.

Appropriate permission granted by the Secretary of State paras 9.11 to 9.15

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Appropriate permission granted by the Secretary of State

]]> 9.11 Where protected information is likely to be, or has been, obtained under a warrant issued by the Secretary of State (for example an interception warrant under section 8 of the Act, or a warrant for interference with wireless telegraphy, entry or interference with property under section 5 of the Intelligence Services Act 1994) appropriate permission for giving a section 49 notice in respect of that information may be obtained from the Secretary of State.

9.12 Only persons holding office under the Crown, the police, a member of staff of the SOCA or HMRC may have the appropriate permission in relation to protected information obtained, or to be obtained, under a warrant issued by the Secretary of State.

9.13 Such persons have appropriate permission if the warrant issued by the Secretary of State contains permission for giving section 49 notices in relation to protected information to be obtained under the warrant or, subsequent to the issue of the warrant, the Secretary of State grants written permission for giving section 49 notices in relation to protected information obtained under the warrant.

9.14 The Secretary of State may also grant written permission for giving section 49 notices where protected information has come, or is likely to come, into the possession of any of the intelligence services without a warrant or where protected information has been, or is likely to be, obtained lawfully by any of the intelligence services using a statutory power but without the exercise of a warrant^[21] or where protected information is in the possession of any of the intelligence services, or is likely to come into their possession, for example material voluntarily disclosed or provided to any of the intelligence services.^[22]

^[21] See paragraph 3 of Schedule 2 to the Act.
^[22] See paragraph 5(2) of Schedule 2 to the Act.

9.15 Where the Secretary of State's permission is sought he must grant the permission personally in writing or, in an urgent case,^[23] expressly authorise the grant of permission in which case a senior official may sign it.^[24]

^[23] See paragraph 4.23
^[24] See paragraph 8 of Schedule 2 to the Act.

Appropriate permission granted by an authorising officer paras 9.16 to 9.18

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Appropriate permission granted by an authorising officer

]]> 9.16 Where protected information is likely to be, or has been, obtained in consequence of an authorisation under Part III of the Police Act 1997 (authorisation of otherwise unlawful action in respect of property) appropriate permission for giving a section 49 notice may be obtained from an authorising officer within the meaning of section 93 of the 1997 Act or, in urgent cases, section 94 of that Act.

9.17 Any person will have appropriate permission if, before protected information is obtained, the authorisation contained permission for giving notices in relation to protected information to be obtained under the authorisation or, subsequent to the issue of the authorisation, written permission is granted for giving notices in relation to protected information obtained under the authorisation.

9.18 Only the police, SOCA and HM Revenue and Customs may have the appropriate permission in relation to protected information obtained, or to be obtained, under an authorisation under Part III of the Police Act 1997.

Appropriate permission granted by a person exercising a statutory function paras 9.19 to 9.21

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Appropriate permission granted by a person exercising a statutory function

]]> 9.19 The police, SOCA, HMRC and members of HM Forces have appropriate permission, without requirement for permission to be granted by a judicial authority, in relation to protected information:

likely to be, or has been, obtained by the exercise of a statutory power (and is not information obtained under a warrant issued by the Secretary of State or a person holding judicial office, or an authorisation under Part III of the Police Act 1997, or information obtained by the intelligence services), for example material obtained by the police under section 19 of PACE;
that is likely to be provided or disclosed, or has been provided or disclosed, in pursuance of a statutory duty;
that is likely to come into possession of, or is in the possession of, the police, SOCA, HMRC or a member of HM Forces under statute.

9.20 In these circumstances, if a section 49 notice is to require disclosure, such permission may be given in line with the general requirements relating to appropriate permission.

9.21 Otherwise a person shall not have the appropriate permission unless he is the person:

exercised the statutory power (or is a person who could have exercised it); or
to whom the protected information was provided or disclosed (or is a person to whom provision or disclosure of the information would have discharged the statutory duty); or
is such a person when the power is exercised or the protected information provided or disclosed.

General requirements relating to appropriate permission paras 9.22 to 9.24

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General requirements relating to appropriate permission

]]> 9.22 Paragraph 6 of Schedule 2 to the Act sets out general requirements relating to persons having appropriate permission in the police, SOCA, HMRC and who are members of HM Forces. A person has appropriate permission in relation to any protected information if he has possession of the protected information, or is likely to have possession of it, or is authorised to act on behalf of such a person.

9.23 Where protected information has come into the possession of the police by means of the exercise of powers conferred by section 44 of the Terrorism Act 2000 (power to stop and search), the appropriate permission to give a section 49 notice in relation to that information must be granted by an officer holding at least the rank of Assistant Chief Constable of a police force or the rank of Commander in the Metropolitan Police Service or the City of London Police.

9.24 Where protected information has come into the possession of the police, SOCA, HMRC or a member of HM Forces, a person shall not have appropriate permission unless that person holds certain rank or designation:

Poliice - superintendent or above;
SOCA - Director General or a member of staff of the SOCA of or above such level as the Director General may designate for this purpose;
HMRC - the Commissioners for Revenue and Customs themselves or an officer of their department of or above such level as they may designate for this purpose;
HM Forces - Lieutenant Colonel or its equivalent or above

Appropriate additional permission for giving directions for the disclosure of keys paras 9.5 to 9.29

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Appropriate additional permission for giving directions for the disclosure of keys

]]> 9.25 Where a disclosure requirement can only be met by disclosure of a key, appropriate additional permission for giving such a direction is required in the following circumstances:

for a direction by any constable (except a constable who is a member of the staff of the SOCA), and a member of Her Majesty's forces who is a member of the police, by or with the permission of a chief officer of police;
for a direction by SOCA, by or with the permission of the Director General of the SOCA;
for a direction by HMRC, by or with the permission of the Commissioners for Her Majesty's Revenue and Customs;
for a direction by a member of Her Majesty's forces who is not a member of the police force, by or with the permission of, or above, the rank of Brigadier (or equivalent).

9.26 Any permission granted for giving a direction that a disclosure requirement can only be met by disclosure of a key must be given expressly in relation to the specific direction.

9.27 Any direction to disclose a key given by or with the permission of a chief officer of police, the Director General of the SOCA or the Commissioners for Her Majesty's Revenue and Customs shall be notified to the Chief Surveillance Commissioner

9.28 Any direction to disclose a key given by a member of Her Majesty's forces shall also be notified to the Chief Surveillance Commissioner except where the direction is given by a member of Her Majesty's forces who is not a member of a police force and is in connection with Her Majesty's forces other than those in Northern Ireland in which case notification must be given to the Intelligence Services Commissioner.

9.29 Notification to the appropriate Commissioner of any direction to disclose a key must be given in writing or electronically as soon as practicable and within no more than 7 days of the direction being given.

Duration of appropriate permission paras 9.31 to 9.32

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Duration of appropriate permission

]]> 9.30 Permission granted to any person to give a section 49 notice can cease to have effect.

9.31 Permission, once granted, has effect - regardless of the cancellation, expiry or discharge of any warrant or authorisation in which that permission is contained or to which it relates - until such time, if any, as that permission:

expires in accordance with any limitation on its duration that was contained in the terms of the permission, or
is withdrawn by the person who granted the permission or by a person holding any office or other position that would have entitled that person to grant the permission.

9.32 All persons who grant permission for the giving of notices must attach an appropriate duration to all such permissions. Permission lasting for a lengthy period will always need careful consideration particularly with regard to whether in the specific circumstances the notice remains necessary and appropriate.

OFFENCES para 10.1

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OFFENCES

]]> 10.1 The Act provides for two criminal offences: failure to comply with a notice (Section 53) and making an unauthorised disclosure (tipping-off) (Section 54).

Failure to comply with a notice paras 10.2 to 10.6

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Failure to comply with a notice

]]> 10.2 Where a person given a section 49 notice knowingly fails to make the disclosure required they commit an offence. If the disclosure required is necessary in the interests of national security they may be convicted on indictment to a maximum of 5 years imprisonment^[25] or in any other case 2 years. On summary conviction they may be liable to a maximum six-month term of imprisonment or a fine not exceeding the statutory maximum or both.

^[25] Section 53 as amended by Section 15, Terrorism Act 2006

10.3 In proceedings against any person for failing to comply with a notice, if it is shown that he (or she) was in possession of a key to the protected information at any time before the notice was given, that person shall be considered 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 that he (or she) was required to disclose it.

10.4 If the person fails to raise some doubt as to whether he (or she) had the key when the notice was given or before any subsequent time by which he (or she) was required to make the disclosure, that person shall be taken to have continued to be in possession of that key.

10.5 A person shall be taken to have shown they were not in possession of a key to protected information at a particular time if sufficient evidence of that fact is adduced to raise an issue with respect to their not having had possession of the key.

The prosecutor has to prove the contrary beyond reasonable doubt.

10.6 It is a defence for a person to show it was not reasonably practicable to make the disclosure required within the time limit given in the notice but that the disclosure was made as soon afterwards as was reasonably practicable.

Tipping off paras 10.7 to 10.13

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Tipping off

]]> 10.7 Section 49 notices may contain a provision requiring the person to whom the notice is given and every other person who is permitted to or who necessarily becomes aware of it or of its contents to keep secret the giving of the notice, its contents and the things done to comply with it. The inclusion of a secrecy requirement in a notice requires the consent of the person granting permission for the notice to be given or for the person giving the notice to have that permission.

10.8 This secrecy requirement is designed to preserve - but only where necessary - the covert nature of an investigation and to deter deliberate and intentional behaviour designed to frustrate statutory procedures and assist others to evade detection.

10.9 The circumstances in which a secrecy requirement may be imposed are restricted in section 54 of the Act. There are two conditions;

the first condition is that the protected information has come, or is likely to come, into the possession of the police, SOCA, HMRC or the intelligence services;
the second condition is that the means by which the information was obtained needs to be kept secret in order to maintain the effectiveness of an investigation or operation or of investigative techniques generally, or in the interests of the safety or well being of any person.

10.10 Any public authorities other than those specified in section 54 may not include a secrecy requirement in their disclosure notices

10.11 In imposing any secrecy requirement it is enough for any person giving consent for that requirement or giving a notice including such a requirement to have considered that there is a particular person from whom it is reasonable to withhold the information.

10.12 Where a secrecy requirement is imposed, the notice must make this clear and the person given notice and any other person who needs to know about the notice should be made aware explicitly of that requirement. The notice should also inform the recipient that he (or she) may nonetheless approach a professional legal adviser for advice about the effect of the provisions of Part III of the Act and that he (or she) may revoke any key that is disclosed provided the underlying reason for its revocation is not disclosed.

10.13 The tipping-off offence is committed by a person who makes a disclosure to any other person of anything that he (or she) is required by the section 49 notice to keep secret.

Automatic tipping-of paras 10.14 to 10.17

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Automatic tipping-off

]]> 10.14 For security purposes, certain software has been designed to give an automatic warning when a key has been disclosed or has ceased to be secure. This can conflict with a secrecy requirement, although the person seeking permission to give the notice should, so far as is practicable, establish whether the intended recipient of the notice uses such software and if so what reasonable steps they can take to prevent or defer such disclosure.

10.15 Where a disclosure occurs contrary to a secrecy requirement it is a defence for a person to show that the disclosure was automatic and effected entirely by the operational software designed to indicate that a key to protected information ceases to be secure and they could not reasonably have prevented that taking place, whether after being given the notice or becoming aware of it or its contents.

10.16 It is also a defence for a person to show that the disclosure was made by or to a professional legal adviser as part of giving advice to a client of his about the effect of the provisions of Part III of the Act and that the person to whom or by whom the disclosure was made was the client or a representative of the client; or where a disclosure was made by a legal adviser in connection with any proceedings before a court or tribunal.

10.17 If a disclosure is made by or to a legal professional adviser with a view to furthering any criminal purpose that disclosure shall not be a defence in proceedings for a Section 54 offence.

Authorised disclosure paras 10.18 to 10.19

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Authorised disclosure

]]> 10.18 It is not the intention of the Act to penalise individuals within organisations who, for example, have been given a notice imposing a disclosure requirement but need the assistance of another colleague in order to comply with the notice.

10.19 In section 54(9) the Act provides a statutory defence to unauthorised disclosure where the disclosure was made to a relevant Commissioner or was authorised by a Commissioner; by the terms of the notice; by, or on behalf of, the person who gave the notice or by, or on behalf of, a person in lawful possession of the protected information to which the notice relates.

OVERSIGHT paras 11.1 to 11.4

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OVERSIGHT

]]> 11.1 The Act provides for Commissioners whose remit is to provide independent oversight of the exercise and performance of the powers and duties contained in Part III

except where those powers and duties are being exercised by a judicial authority.

11.2 There are three independent Commissioners with relevant oversight responsibilities:

the Interception of Communications Commissioner who keeps under review:
- the exercise and performance by the Secretary of State of the powers and duties conferred or imposed on him by or under Part III, particularly the grant of appropriate permission for the giving of a section 49 notice in relation to information obtained under Part I (intercepted material and other related communications data), and
- the adequacy of the arrangements for complying with the safeguards in section 55 in relation to key material for protected information obtained under Part I.
the Intelligence Services Commissioner who keeps under review (so far as they are not required to be kept under review by the Interception of Communications Commissioner):
- the exercise and performance by the Secretary of State of the powers and duties conferred or imposed on him by Part III particularly the grant of appropriate permission for the giving of a section 49 notice in connection with, or in relation to, the activities of the intelligence services and the activities (other than activities in Northern Ireland) of the Ministry of Defence ('MOD') and members of HM Forces;
- the exercise and performance by members of the intelligence services of the powers and duties conferred or imposed on them by or under Part III;
- the exercise and performance, in places other than Northern Ireland, by officials of the MOD and members of HM Forces of the powers and duties conferred or imposed on such officials or members of HM Forces by or under Part III, and
- the adequacy of the arrangements for complying with the safeguards in section 55 in relation to members of the intelligence services and, in connection with any of their activities in places other than Northern Ireland, in relation to officials of the MOD and members of HM Forces.
the Chief Surveillance Commissioner who keeps under review, so far as they are not kept under review by the other Commissioners:
- the exercise and performance, by any person (other than a judicial authority) of the powers and duties conferred or imposed, otherwise than with the permission of a judicial authority, by or under Part III, and
- the adequacy of the arrangements for complying with the safeguards in section 55 by those persons whose conduct is subject to review by the Chief Surveillance Commissioner.

11.3 This code does not cover the exercise of the Commissioners' functions. It is the duty of any person who uses the powers conferred by Part III, or on whom duties are conferred, to comply with any request made by a Commissioner to provide any information he requires for the purposes of enabling him to discharge his functions.

11.4 Should any Commissioner establish that an individual has been adversely affected by any wilful or reckless failure by any person within a public authority exercising or complying with the powers and duties under Part III of the Act he shall inform the affected individual of the existence of the Tribunal and its role. The Commissioner should disclose sufficient information to the affected individual to enable him or her to effectively engage the Tribunal.

COMPLAINTS paras 12.1 to 12.2

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COMPLAINTS

]]> 12.1 The Act established an independent Tribunal ('the Investigatory Powers Tribunal'). The Tribunal is made up of senior members of the judiciary and the legal profession and is independent of the Government. The Tribunal has full powers to investigate and decide any case within its jurisdiction, which includes the giving of a notice under section 49 or any disclosure or use of a key to protected information.

12.2 This code does not cover the exercise of the Tribunal's functions. Details of the relevant complaints procedures can be obtained from the following address:

The Investigatory Powers Tribunal,
PO Box 33220
London
SW1H 9ZQ

020 7035 3711

Investigation of Protected Electronic Information
A public consultation

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