Section 8: Contents of warrant

74. This Section describes the two different forms which a warrant may take.

75. Subsections (1)(a) and (b) require that either the person or the set of premises to be intercepted is named or described on the face of the warrant.

"Person" is defined in Section 81(1).

"Interception" is described in Section 2.

76. Subsections (2) and (3) require that a warrant must include one or more schedules describing which communications are to be intercepted. The schedule or schedules will do this by setting out the addresses (for example, telephone numbers or e-mail addresses), numbers, apparatus or other factors, or combination of factors. By subsection (3), each factor or combination of factors must identify communications which are or are likely to include communications from or intended for the person described in the warrant, or originating on or intended for transmission to the premises named in the warrant.

"Communication" is defined in section 81(1).

77. Subsection (4) describes a second form which warrants may take. It applies if the conditions in subsections (4)(a) and (b), are met.

78. Subsection (4)(a) confines the conduct authorised or required by the warrant to conduct falling within subsection (5).

79. Subsection (4)(b) requires that at the time when the Secretary of State issues the warrant there must be in existence a certificate certifying the description of intercepted material the examination of which he considers necessary as is mentioned in section 5(3)(a), (b) or (c) - namely the purposes for the issue of warrants other than the one relating to international mutual assistance agreements. The effect of this subsection is to require the Secretary of State to authorise a certificate describing the intercepted material which falls properly within the purpose and may therefore be read, looked at or listened to by any person. No other intercepted material, though the communications are lawfully intercepted, may be so examined. The material authorised for examination is therefore subject to Ministerial control.

80. Subsection (5)(a) covers conduct that consists in the interception of communications in the course of their transmission by a telecommunication system. The effect of this is to limit warrants under this provision to telecommunication, and to exclude postal items. These communications must also be external communications, i.e. sent or received outside the British Islands.

"External communications" is defined in Section 20.

81. Subsection (5)(b) covers conduct authorised by an interception warrant by Section 5(6). See Explanatory Notes for Section 5(6)(a) to (c).

82. Subsection (6) requires a certificate to be issued under the hand of the Secretary of State. The control exercised through the certificate has therefore to be a personal Ministerial one. There is no provision for delegation of this power to officials, even in urgent cases.

Section 9: Duration, cancellation and renewal of warrants.

83. Section 9 provides for the issue, duration and renewal of warrants.

84. Subsection (1)(a) states that a warrant ceases to have effect at the end of the relevant period unless renewed under the power in subsection (1)(b). A renewal instrument must be issued under the hand of the Secretary of State unless the warrant was issued under Section 7(2)(b), in which case the renewal instrument may be issued by a senior official. Section 7(2)(b) applies to cases in which the warrant is issued to comply with a request for mutual assistance where the subject of interception or the relevant premises and the competent authority making the request are outside the United Kingdom.

"Relevant period" is defined in subsection (6).

"Working day" is defined in section 81(1).

85. Subsection (2) adds a condition that the Secretary of State may only renew a warrant under subsection (1) if he considers that the warrant continues to be necessary as mentioned in Section 5(3) (in the interests of national security, for the purpose of preventing or detecting serious crime, for the purpose of safeguarding the economic well-being of the UK or 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).

86. Subsection (3) requires the Secretary of State to cancel a warrant at any time if he considers that it is no longer necessary as mentioned in Section 5(3).

87. Subsection (4) requires the Secretary of State to cancel a warrant where the warrant or renewal instrument was issued under the hand of a senior official on the basis that the subject of the interception was outside the United Kingdom, but the Secretary of State is satisfied that the subject is now in the United Kingdom. For the interception to continue in such circumstances, a new warrant will need to be issued by the Secretary of State himself.

88. Subsection (5) applies to renewal instruments issued under the hand of a senior official for the purpose of renewing a warrant issued to comply with a request for mutual assistance where the subject of interception and the competent authority making the request are outside the United Kingdom. In such cases, the renewal instrument must contain a statement that the interception subject or the premises to which the interception relates are outside the United Kingdom.

89. Subsection (6)(a) applies to warrants issued under the urgency procedure in section 7(2)(a). Such warrants last for a maximum of five working days following the day of the warrant's issue. Thus a warrant issued in this way at any time on day one will expire at midnight on the fifth working day after day one. If renewed under the hand of the Secretary of State within five working days a warrant initially issued under the urgency procedure then falls within subsection (6)(c) and is valid for three months beginning with the day of the renewal.

90. Under subsection (6)(b) the relevant period is six months, beginning with the day of the warrant's renewal. The result of this is that warrants the renewal of which is considered necessary as mentioned in section 5(3)(a) (in the interests of national security) or (c) (for the purpose of safeguarding the economic well-being of the UK) lapse unless renewed by the Secretary of State within a period of six months.

91. Under subsection (6)(c) the relevant period is 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. The effect of this is that all new warrants, and all warrants the renewal of which is considered necessary as mentioned in section 5(3)(b) (for the purpose of preventing or detecting serious crime), are valid for three months from the day of the warrant's issue or renewal.

"International mutual assistance agreement" is defined in Section 20.

Section 10: Modification of warrants and certificates

92. Section 10 sets out the circumstances in which warrants and certificates may be modified and by whom this may be done.

93. Subsection (1)(a) gives the Secretary of State the power to modify the provisions of an interception warrant.

94. Subsection (1)(b) gives the Secretary of State the power to modify the description of interception material specified in a Section 8(4) certificate so as to include any material the examination of which he considers necessary for a purpose mentioned in Section 5(3)(a), (b) or (c) (in the interests of national security, for the purpose of preventing or detecting serious crime, for the purpose of safeguarding the economic well-being of the UK).

95. Subsection (2) requires the Secretary of State to modify a schedule if at any time he considers that any factor in the schedule is no longer relevant for identifying communications from, or intended for, the person named or described in the warrant or the communications originating on or intended for transmission to the premises so named or described. The modification is to take the form of the deletion of the factor in question. This provision is the modification equivalent of the cancellation provision in Section 9(3).

96. Subsection (3) requires the Secretary of State to modify the description in a certificate if at any time he considers that it includes material the examination of which is no longer necessary for the purposes mentioned in section 5(3)(a) to (c). The modification is to take the form of the exclusion of the material in question.

97. Subsection (4) allows only the Secretary of State or a senior official to modify a warrant or certificate subject to subsections (5) to (8).

98. By subsection (5), a senior official may only modify the unscheduled parts (explained in subsection (10) below) of an interception warrant in an urgent case where the official is expressly authorised by the Secretary of State himself to make the modification and a statement of that fact is on the modifying instrument. This is the same as the urgency procedure for the issue of warrants.

99. The restriction in subsection (5) does not apply to the scheduled parts of a warrant, which may therefore be modified without each modification being referred personally to the Secretary of State. Such modifications shall be valid for five working days - see subsection (9). But subsection (6) restricts the senior officials who may modify the scheduled parts of a warrant by prohibiting those listed in Section 6(2) or their subordinates from making modifications under this provision. The intention is that this function will only be exercised by senior officials in the department of a Secretary of State.

100. Subsection (7) requires that a senior official may only modify a section 8(4) certificate in an urgent case where the official is expressly authorised by the provisions contained in the certificate to modify the certificate on the Secretary of State's behalf or the Secretary of State has expressly authorised the modification and a statement of that fact is on the modifying instrument. Again such modifications shall be valid for five working days - see subsection (9).

101. Subsection (8) is a separate power to that provided by subsection (4). It permits the persons listed in Section 6(2) or any of their subordinates, where they are expressly authorised by the warrant, to make urgent modifications to the scheduled parts of an interception warrant. Again such modifications shall be valid for five working days - see subsection (9).

"Working day" is defined in Section 81(1).

102. Subsection (10) explains what is meant by modifying the scheduled or unscheduled parts of an interception warrant.

Section 11: Implementation of warrants

103. This Section addresses the question of how an interception warrant may be implemented once it has been authorised, and the role of different people within this process.

104. Subsection (1) allows the interception to be carried out either by the person to whom the warrant is addressed (ie where it is technically feasible, by the intercepting agency itself), or by other persons providing assistance in the implementation.

For "provide assistance", see subsection (9).

105. Subsection (2). Where an intercepting agency requires another person to assist it in implementing an interception, it is likely that the person providing assistance will wish to be satisfied that there is an interception warrant in existence. This subsection provides for this, allowing the intercepting agency to provide either a copy of the warrant or to make arrangements whereby a copy is provided.

106. Subsection (3). Where a copy of a warrant is served upon a person providing assistance in accordance with subsection (2), this subsection allows the intercepting agency to restrict the disclosure of the warrant to just that material which the person providing assistance needs to see in order to satisfy themselves that their actions are authorised. Most commonly this may involve a communications service provider only being shown the front of the warrant (showing the name of the person to be intercepted) and the specific schedule which identifies the communications which they are being asked to provide assistance in intercepting.

107. Subsection (4) states that where a person providing a communications service is required to give assistance in accordance with an interception warrant, they must do everything required of them by the person to whom the warrant is addressed in order to give effect to the warrant. As to what the warrant authorises or requires, see Section 5.

108. Subsection (5) ensures that no unreasonable demands are made of service providers.

109. Subsection (6) explains that that where a service provider has had an obligation to provide an intercept capability imposed upon them under Section 12, it is reasonable to expect them to be able to provide assistance with an intercept up to the level of the imposed capability.

110. Subsection (7) creates a criminal offence of knowingly failing to comply with a requirement to provide the required assistance in implementing an interception warrant. It goes on to specify the maximum penalties which a person who is found guilty of this offence may be sentenced to. On the statutory maximum, see the note for Section 1(7).

111. Subsection (8) also allows the Secretary of State to take civil proceedings against a person who fails to provide the required assistance under subsection (4) in order to compel him to provide such assistance by means of, inter alia, an injunction or other appropriate relief.

112. Subsection (9) explains that the term "provision of assistance" includes the actual disclosure of the intercepted material and related communications data to the person to whom the warrant is addressed (or his representative).

Section 12: Maintenance of interception capability

113. This section provides a power allowing the Secretary of State to impose obligations upon providers of publicly available communication services to maintain a reasonable intercept capability.

114. Subsection (1) provides the mechanism by which the Secretary of State may set out a framework for obligations upon persons providing or planning to provide public postal services or public telecommunications services. The Secretary of State will do this through an order (affirmative resolution, see subsection (10)) which lays out the obligations which he believes are reasonable, with the aim of ensuring that providers are capable of giving assistance in the implementation of interception warrants. The order itself will not impose specific requirements on providers but will describe in general terms the kind of intercept capability which they may be required to provide.

For the meaning of "public postal service" and "public telecommunications service", see Section 2(1). But see also Section 12(4), which limits the application of this section.

115. Subsection (2) explains that the Secretary of State imposes obligations on particular providers by the service of individual notices describing in much greater detail than the order the precise steps they are required to take.

As to what steps may be imposed, see subsections (3) and (11). For the time limits for compliance, see subsection (8).

116. Subsection (4) provides that commercial and other organisations which provide a telecommunications service as no more than a means of accessing a further service of theirs (for example, a telephone banking service) will not be subject to any order under this section. The subsection also puts outside the scope of the section a telecommunications service that is necessarily incidental to a different service.

117. Subsections (5) and (6) concern the consideration of notices by the Technical Advisory Board (established by Section 13(1)). Where a person is served with a notice under subsection (2), they may ask the Board to consider the notice. The Board will consider the technical requirements and financial consequence of the notice, and report their conclusions to the person on whom the notice was served and to the Secretary of State. During that time, the obligations under the notice are suspended by virtue of paragraph (a). The Secretary of State, on receipt of advice from the Board, may withdraw the notice or re-issue it with or without modifications.

118. Subsection (7) requires persons served with a notice under subsection (2) to comply with it. The Secretary of State may bring civil proceedings to enforce this duty.

119. Subsection (9) requires the Secretary of State to consult with a number of people prior to making an order. These include, as the Secretary of State considers appropriate, the persons likely to have obligations imposed on them and their representatives, the Technical Advisory Board, and bodies which have statutory functions affecting providers of communication services. The latter category includes, for example, OFTEL.

120. Subsection (11) explains that the steps that may be required to be taken should take account of the need for security and confidentiality and the need to facilitate (such as by audit mechanisms) the job of the Interception Commissioner.

Section 13: Technical Advisory Board

121. This Section provides for the establishment by order of a Technical Advisory Board. Its make-up will be prescribed by order (affirmative resolution - see subsection (3)), and must include a balanced representation of the interests of communications service providers and of those people listed in section 6(2).

Section 14: Grants for interception costs

122. This Section requires the Secretary of State to ensure that there are arrangements to secure that communications service providers receive such a contribution as is fair in each particular case to the costs of providing an intercept capability or in the provision of assistance in respect of individual warrants.

Section 15: General safeguards

123. This Section has the effect of restricting the use of intercepted material to the minimum necessary for the authorised purposes. Section 82(6) contains a transitional provision applying the provisions of Sections 15 and 16 to warrants and certificates under the 1985 Act.

124. Subsection (1) imposes a duty upon the Secretary of State to ensure that safeguard arrangements are in place to ensure the requirements of this section and section 15 are complied with.

125. Subsection (2) requires that the distribution and disclosure of intercepted material and related communications data are kept to a minimum.

126. Subsection (3) requires that all copies of any intercepted material and related communications data must be destroyed as soon it is no longer necessary to retain it for any of the authorised purposes (see below). This does not impose any obligation to retain material, which may therefore be destroyed earlier in some cases.

"Copy" is defined in subsection (8).

127. Subsection (4) defines "authorised purposes", which are the reasons which determine the extent of distribution and disclosure allowed under subsection (2) and the reasons for which intercepted material may be retained rather than being destroyed under subsection (3).

128. Subsection (5) requires that intercepted material and related communications data are stored in a secure manner for as long as they are retained.

129. Subsections (6) and (7) apply where possession of intercepted material or related communications data has been surrendered to any authorities of a country or territory outside the United Kingdom. Possession may be surrendered in this way where an interception warrant has been issued for the purpose of complying with a request under an international mutual assistance agreement designated under Section 1(4). For example, where such a request results in the provision of intercept material by the communication service provider to the competent authorities of another country in real-time, the material will not, at any point, be under the control of an intercepting agency in the United Kingdom.

130. For these reasons, the Secretary of State will be required to make such arrangements (if any) corresponding to subsections (2) and (3) as he thinks fit. The Secretary of State will also be required to ensure, to such extent (if any) as he thinks fit, that restrictions are in force preventing the disclosure in any proceedings outside the United Kingdom which could not be made in the United Kingdom by virtue of Section 17 (the exclusion of intercept material from legal proceedings).

Section 16: Extra safeguards in the case of certificated warrants

131. This Section creates extra safeguards in addition to those provided in Section 15, in the case of warrants to which Section 8(4) certificates apply.

132. Subsections (1) and (2) provide the additional safeguards which apply. Material intercepted under the authority of a warrant to which a certificate applies should only be examined if it:

• has been certified as necessary to be examined in the interests of national security; for the purpose of preventing or detecting serious crime; or for the purpose of safeguarding the economic well-being of the United Kingdom; and

• does not have as its purpose, or one of its purposes, the identification of material contained in communications sent by, or intended for, an individual who is known to be for the time being in the British Islands; and

• has not been selected by reference to such an individual.

133. Subsection (3) provides an exception to the second and third criteria above where under a Section 8(4) certificate the Secretary of State has certified that material selected by reference to such an individual is necessary for one of the three purposes outlined above. This material may only relate to communications sent during the period specified in the certificate; and the period specified must not be more than three months.

134. Subsections (4), (5) and (6) provide two further exceptions where:

• the person to whom the warrant is addressed believes on reasonable grounds both that the material examined is not referable to an individual known to be in the British Islands, and that the material has not been selected for the purpose of identifying material contained in communications sent by, or intended for, such an individual; or

• it has appeared to the person to whom the warrant is addressed that circumstances have changed such that the individual concerned has entered the British Islands, or that their belief in the individual's absence from the British Islands was mistaken; and since it first so appeared, written authorisation to examine the material has been given by a senior official.

135. The senior official may only provide authorisation until the end of the first working day after the day on which the change of circumstances became apparent.

Section 17: Exclusion of matters from legal proceedings

136. Section 17, subject to certain exceptions, prohibits evidence, questioning or assertion in (or for the purposes of, or in connection with) legal proceedings likely to reveal the existence or absence of a warrant. A similar provision is contained in section 9 of the Interception of Communications Act 1985, which this Act repeals.

137. Subsection (1) imposes the basic prohibition. It does this directly, by stating that the contents of intercepted material and associated communications data may not be disclosed, and indirectly by prohibiting the disclosure of any suggestion that actions under subsection (2) have occurred.

138. Subsection (2) describes the actions which may not be disclosed, including actions by persons named in subsection (3) which would constitute offences under this Act or section 1 of the 1985 Act.

139. Subsection (3) lists the people referred to in subsection (2)(a). They are people who may be in possession of information about authorised interception. In paragraph (3)(b) persons holding office under the Crown includes constables and, by virtue of Section 81(6), Crown servants and members of the Armed Forces.

Section 18: Exceptions to section 17

140. Subsections (1) and (3) list the proceedings in relation to which the prohibition in section 17(1) will not apply. None of the exceptions make anything admissible that would, but for the Act, be inadmissible. The exceptions merely remove the prohibition imposed by Section 17.

"Relevant offence" is explained in subsection (12).

141. Subsection (2) prevents the disclosure of information mentioned in section 17(1) to certain categories of person involved in proceedings before the Special Immigration Appeals Commission and the Proscribed Organisations Appeal Commission.

142. Subsection (4) allows the disclosure of the contents of a communication if the interception was lawful without the need for a warrant by virtue of Sections 1(5)(c), 3 or 4. This means that interception carried out in those circumstances may be evidential.

143. Subsection (7) allows the disclosure of the fact and contents of an interception to a person conducting a criminal prosecution. A prosecutor has a duty, recognised in case-law, to ensure that a prosecution is conducted fairly. This provision allows the intercepting agency to give the prosecutor access to any intercept material which has not been destroyed so that he can discharge that duty effectively. This subsection further provides that the fact and contents of an interception may also be disclosed to a relevant judge in exceptional circumstances (see subsection (8) below). The subsection allows disclosure to the judge alone.

"Relevant judge" is explained in subsection (11).

144. Subsection (8) makes it clear that the judge must be satisfied that the exceptional circumstances of the case make any disclosure under subsection (7)(b) essential in the interests of justice.

145. Subsection (9) provides for a relevant judge where he has ordered disclosure under subsection (7)(b) in exceptional circumstances to direct the person conducting the prosecution in any criminal proceedings to make any such admission of fact as that judge thinks is essential in the interests of justice.

146. Subsection (10) makes it clear that a judge cannot order an admission of fact in contravention of Section 17(1). The admission, therefore, must be one that does not tend to suggest that an interception has taken place.

Section 19: Offence for unauthorised disclosures

147. This section places a requirement upon specified groups of persons to keep secret all matters relating to warranted interception.

148. Subsection (2) describes the groups of persons upon whom there is a duty to keep secret matters relating to warranted interception. These include:

• anyone to whom an interception warrant may be addressed. These are described in Section 6 and include both heads of intercepting agencies but also anyone who may make an application for an interception warrant on their behalf;

• anyone holding office under the Crown (civil servants, police officers and members of Her Majesty's forces) and civilian employees of police authorities;

• anyone providing or employed for the purpose of providing either a postal service or a public telecommunications service;

• anyone controlling any part of a telecommunications system in the United Kingdom.

149. Subsection (3) describes the matters which must be kept secret. In essence these are anything to do with the existence or implementation of a warrant, including the content of the intercepted material and related communications data.

150. Subsection (4) creates the offence of unlawful disclosure and specifies the maximum penalties which a person who is found guilty of the criminal offence of unlawful disclosure may be sentenced to; if he is found guilty in a Magistrates' Court he may be imprisoned for a period up to six months or fined up to the statutory maximum (currently £5000) or both; in a Crown Court he may be imprisoned for a period up to five years, or may be fined (no upper limit), or both.

151. Subsection (5) gives a defence where a person could not reasonably have been expected to take steps to prevent the unlawful disclosure.

152. Subsections (6) and (7) give further defences to the offence of unlawful disclosure and addresses the question of a person consulting their legal adviser about requirements placed upon them under this Act, and disclosures which their legal adviser may be required to make as a result of such consultation. For example, where a communications service provider is required to provide assistance with the implementation of an interception warrant, the provider may wish to first consult their lawyer. Subsection (6) provides a defence to such a consultation being an unlawful disclosure.

153. Subsection (8) places a limitation on the defences described in subsections (6) and (7), stating that the defences are not valid where a disclosure was made with a view to furthering any criminal purpose.

154. Subsection (9) gives a further defence to the offence of unlawful disclosure, stating that where such a disclosure was authorised in any of the ways described in this subsection this would constitute a defence.