Regulation of Investigatory Powers Act 2000 (c. 23)

(The document as of February, 2008)

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(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.

(6) Subsection (4) shall not authorise the making under the hand of either--

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

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

of any modification of any scheduled parts of an interception warrant.

(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, and

(b) a statement for the purposes of subsection (5)(b) 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.

11 Implementation of warrants

(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.

(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 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.

(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 by civil proceedings by the Secretary of State for an injunction, or for specific performance of a statutory duty under section 45 of the [1988 c. 36.] 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.

Interception capability and costs

12 Maintenance of interception capability

(1) The Secretary of State may by order provide for the imposition by him on persons who--

(a) are providing public postal services or public telecommunications services, or

(b) are proposing to do so,

of such obligations as it appears to him reasonable to impose for the purpose of securing that it is and remains practicable for requirements to provide assistance in relation to interception warrants to be imposed and complied with.

(2) The Secretary of State's power to impose the obligations provided for by an order under this section shall be exercisable by the giving, in accordance with the order, of a notice requiring the person who is to be subject to the obligations to take all such steps as may be specified or described in the notice.

(3) Subject to subsection (11), the only steps that may be specified or described in a notice given to a person under subsection (2) are steps appearing to the Secretary of State to be necessary for securing that that person has the practical capability of providing any assistance which he may be required to provide in relation to relevant interception warrants.

(4) A person shall not be liable to have an obligation imposed on him in accordance with an order under this section by reason only that he provides, or is proposing to provide, to members of the public a telecommunications service the provision of which is or, as the case may be, will be no more than--

(a) the means by which he provides a service which is not a telecommunications service; or

(b) necessarily incidental to the provision by him of a service which is not a telecommunications service.

(5) Where a notice is given to any person under subsection (2) and otherwise than by virtue of subsection (6)(c), that person may, before the end of such period as may be specified in an order under this section, refer the notice to the Technical Advisory Board.

(6) Where a notice given to any person under subsection (2) is referred to the Technical Advisory Board under subsection (5)--

(a) there shall be no requirement for that person to comply, except in pursuance of a notice under paragraph (c)(ii), with any obligations imposed by the notice;

(b) the Board shall consider the technical requirements and the financial consequences, for the person making the reference, of the notice referred to them and shall report their conclusions on those matters to that person and to the Secretary of State; and

(i) withdraw the notice; or

(ii) give a further notice under subsection (2) confirming its effect, with or without modifications.

(7) It shall be the duty of a person to whom a notice is given under subsection (2) to comply with the notice; and that duty shall be enforceable by civil proceedings by the Secretary of State for an injunction, or for specific performance of a statutory duty under section 45 of the [1988 c. 36.] Court of Session Act 1988, or for any other appropriate relief.

(8) A notice for the purposes of subsection (2) must specify such period as appears to the Secretary of State to be reasonable as the period within which the steps specified or described in the notice are to be taken.

(9) Before making an order under this section the Secretary of State shall consult with--

(a) such persons appearing to him to be likely to be subject to the obligations for which it provides,

(b) the Technical Advisory Board,

(d) such persons with statutory functions in relation to persons falling within that paragraph,

as he considers appropriate.

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

(11) For the purposes of this section the question whether a person has the practical capability of providing assistance in relation to relevant interception warrants shall include the question whether all such arrangements have been made as the Secretary of State considers necessary--

(a) with respect to the disclosure of intercepted material;

(b) for the purpose of ensuring that security and confidentiality are maintained in relation to, and to matters connected with, the provision of any such assistance; and

(c) for the purpose of facilitating the carrying out of any functions in relation to this Chapter of the Interception of Communications Commissioner;

but before determining for the purposes of the making of any order, or the imposition of any obligation, under this section what arrangements he considers necessary for the purpose mentioned in paragraph (c) the Secretary of State shall consult that Commissioner.

(12) In this section "relevant interception warrant"--

(a) in relation to a person providing a public postal service, means an interception warrant relating to the interception of communications in the course of their transmission by means of that service; and

(b) in relation to a person providing a public telecommunications service, means an interception warrant relating to the interception of communications in the course of their transmission by means of a telecommunication system used for the purposes of that service.

13 Technical Advisory Board

(1) There shall be a Technical Advisory Board consisting of such number of persons appointed by the Secretary of State as he may by order provide.

(2) The order providing for the membership of the Technical Advisory Board must also make provision which is calculated to ensure--

(a) that the membership of the Technical Advisory Board includes persons likely effectively to represent the interests of the persons on whom obligations may be imposed under section 12;

(b) that the membership of the Board includes persons likely effectively to represent the interests of the persons by or on whose behalf applications for interception warrants may be made;

(c) that such other persons (if any) as the Secretary of State thinks fit may be appointed to be members of the Board; and

(d) that the Board is so constituted as to produce a balance between the representation of the interests mentioned in paragraph (a) and the representation of those mentioned in paragraph (b).

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

14 Grants for interception costs

(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;

(c) in relation to each description of person, the imposition on that person of obligations provided for by an order under section 12.

(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.

Restrictions on use of intercepted material etc.

15 General safeguards

(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,

(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 [1958 c. 51.] Public Records Act 1958 or the [1923 c. 20 (N.I.).] 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.

16 Extra safeguards in the case of certificated warrants

(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 a period of not more than three months specified in the certificate.

(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 the first working day after the day on which 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.

17 Exclusion of matters from legal proceedings

(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 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 [1985 c. 56.] 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 [1985 c. 56.] 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;

(d) any member of the National Crime Squad;

(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) In this section "intercepted communication" means any communication intercepted in the course of its transmission by means of a postal service or telecommunication system.

18 Exceptions to section 17

(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);

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

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

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

(2) Subsection (1) shall not, by virtue of paragraph (e) or (f), authorise the disclosure of anything--

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

(i) the appellant 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 [1997 c. 68.] Special Immigration Appeals Commission Act 1997) represents that appellant;

(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.

(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 [1985 c. 56.] 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 legal 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 [1985 c. 56.] 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; or

(b) a disclosure to a relevant judge in a case in which that judge has ordered the disclosure to be made to him alone.

(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.

(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;

(c) in relation to a court-martial, the judge advocate appointed in relation to that court-martial under section 84B of the [1955 c. 18.] Army Act 1955, section 84B of the [1955 c. 19.] Air Force Act 1955 or section 53B of the [1957 c. 53.] Naval Discipline Act 1957; 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 [1985 c. 56.] Interception of Communications Act 1985;

(d) an offence under section 45 of the [1863 c. 112.] Telegraph Act 1863, section 20 of the [1868 c. 110.] Telegraph Act 1868 or section 58 of the [1953 c. 36.] Post Office Act 1953;

(e) an offence under section 45 of the [1984 c. 12.] Telecommunications Act 1984;

(f) an offence under section 4 of the [1989 c. 6.] 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 [1911 c. 28.] 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.

19 Offence for unauthorised disclosures

(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;

(d) every member of the National Crime Squad;

(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;

(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;

(d) by section 11(9).

Interpretation of Chapter I

20 Interpretation of Chapter I

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