Interception of Communications

Code of Practice
Pursuant to section 71 of the Regulation of Investigatory Powers Act 2000

Draft for public consultation

February 2015

Contents
Contents....................................................................................................................................... 2
1.
General ................................................................................................................................ 4
2.
Unlawful interception - criminal and civil offences ............................................................... 5
3.
General rules on interception with a warrant ....................................................................... 6
Necessity and proportionality .......................................................................................... 6
Meaning of telecommunications service ....................................................................... 7
Implementation of warrants ............................................................................................. 7
Provision of reasonable assistance ................................................................................. 8
Provision of interception capability .................................................................................. 8
Duration of interception warrants..................................................................................... 9
Stored communications ................................................................................................... 9
4.
Special rules on interception with a warrant ...................................................................... 11
Collateral intrusion......................................................................................................... 11
Confidential information ................................................................................................. 11
Communications subject to legal privilege .................................................................... 11
Communications involving confidential journalistic material, confidential personal
information, communications between a Member of Parliament and another person on
constituency business ................................................................................................... 13
5.
Interception warrants (section 8(1)) ................................................................................... 15
Application for a section 8(1) warrant ............................................................................ 15
Authorisation of a section 8(1) warrant .......................................................................... 16
Urgent authorisation of a section 8(1) warrant .............................................................. 16
Format of a section 8(1) warrant ................................................................................... 16
Modification of section 8(1) warrant............................................................................... 17
Renewal of a section 8(1) warrant ................................................................................. 17
Warrant cancellation...................................................................................................... 18
Records ......................................................................................................................... 18
6.
Interception warrants (section 8(4)) ................................................................................... 19
Section 8(4) interception in practice .............................................................................. 19
Definition of external communications ........................................................................... 19
Intercepting non-external communications under section 8(4) warrants ....................... 20
Application for a section 8(4) warrant ............................................................................ 20
Authorisation of a section 8(4) warrant .......................................................................... 21
Urgent authorisation of a section 8(4) warrant .............................................................. 22
Format of a section 8(4) warrant ................................................................................... 22
Modification of a section 8(4) warrant and/or certificate ................................................ 22
Renewal of a section 8(4) warrant ................................................................................. 23
Warrant cancellation...................................................................................................... 23
Records ......................................................................................................................... 23
7.
Safeguards ........................................................................................................................ 25
The section 15 safeguards ............................................................................................ 25
Dissemination of intercepted material ........................................................................... 25
Copying ......................................................................................................................... 26
Storage .......................................................................................................................... 26
Destruction .................................................................................................................... 26
Personnel security ......................................................................................................... 27
The section 16 safeguards ............................................................................................ 27
8.
Disclosure to ensure fairness in criminal proceedings ....................................................... 29
2

Exclusion of matters from legal proceedings ................................................................. 29

Disclosure to a prosecutor ............................................................................................. 29
Disclosure to a judge ..................................................................................................... 30
9.
Interception without a warrant ............................................................................................ 31
Interception with the consent of both parties ................................................................. 31
Interception with the consent of one party ..................................................................... 31
Interception for the purposes of a communication service provider............................... 31
Lawful business practice ............................................................................................... 32
10. Oversight.............................................................................................................................. 33
11. Complaints ........................................................................................................................... 34

1. General
1.1

This code of practice relates to the powers and duties conferred or imposed under
Chapter I of Part I of the Regulation of Investigatory Powers Act 2000 (RIPA). It
provides guidance on the procedures that must be followed before interception of
communications can take place under those provisions. This code of practice is primarily
intended for use by those public authorities listed in section 6(2) of RIPA. It will also allow
postal and telecommunication operators and other interested bodies to acquaint
themselves with the procedures to be followed by those public authorities.

1.2

RIPA provides that all codes of practice issued under section 71 are admissible as
evidence in criminal and civil proceedings. If any provision of this code appears relevant
before any court or tribunal considering any such proceedings, or to the Investigatory
Powers Tribunal, or to one of the Commissioners responsible for overseeing the powers
conferred by RIPA, it must be taken into account.

1.3

This version of the code replaces all previous versions of the code.

2. Unlawful interception - criminal and civil

offences
2.1

Interception is lawful only in the limited circumstances set out in section 1(5) of RIPA.

2.2

Section 1(1) of RIPA makes it a criminal offence for a person intentionally, and without
lawful authority, to intercept in the United Kingdom (UK) any communication in the
course of its transmission if that communication is sent via a public postal service or a
public telecommunication system. The penalty for unlawful interception is up to two
years imprisonment or a fine up to the statutory maximum.

2.3

Section 1(1A) enables the Interception of Communications Commissioner to serve a

monetary penalty notice imposing a fine of up to 50,000 if he or she is satisfied that:
a person has unlawfully intercepted a communication at a place in the UK;
the communication was intercepted in the course of its transmission by means of a public
telecommunication system;
the person was not, at the time of the interception, making an attempt to act in
accordance with an interception warrant which might explain the interception concerned;
the person has not committed an offence under section 1(1) of RIPA (intentional unlawful
interception).

2.4

Guidance on the administration of these sanctions is available on the Commissioners

website:
http://www.iocco-uk.info

2.5

Section 1(2) of RIPA makes it a crime for a person intentionally and without lawful
authority to intercept in the UK any communication in the course of its transmission by
means of a private telecommunication system, unless, as set out at section 1(6), the
person has a right to control the operation or the use of the system, or has the express or
implied consent of such a person to make the interception.

3. General rules on interception with a

warrant
3.1

Interception has lawful authority where it takes place in accordance with a warrant issued
under section 5 of RIPA. Chapter 9 of this code deals with the circumstances in which
interception is permitted without a warrant.

3.2

There are a limited number of persons who can make an application for an interception
warrant, or an application can be made on their behalf. These are:
The Director-General of the Security Service.
The Chief of the Secret Intelligence Service.
The Director of the Government Communications Headquarters (GCHQ).
The Director-General of the National Crime Agency (NCA handles interception on behalf
of law enforcement bodies in England and Wales).
The Chief Constable of the Police Service of Scotland.
The Commissioner of the Police of the Metropolis (the Metropolitan Police Counter
Terrorism Command handles interception on behalf of Counter Terrorism Units, Special
Branches and some police force specialist units in England and Wales).
The Chief Constable of the Police Service of Northern Ireland.
The Commissioners of Her Majestys Revenue & Customs (HMRC).
The Chief of Defence Intelligence.
A person who, for the purposes of any international mutual assistance agreement, is the
competent authority of a country or territory outside the UK.

3.3

Any application made on behalf of one of the above must be made by a person holding
office under the Crown.

3.4

All interception warrants are issued by the Secretary of State.1 Even where the urgency
procedure is followed, the Secretary of State personally authorises the warrant, although
it is signed by a senior official.

Necessity and proportionality

3.5

Obtaining a warrant under RIPA will only ensure that the interception authorised is a
justifiable interference with an individuals rights under Article 8 (right to respect for
private and family life) of the European Convention on Human Rights (ECHR) if it is
necessary and proportionate for the interception to take place. RIPA recognises this by
first requiring that the Secretary of State believes that the authorisation is necessary for
one or more of the following statutory grounds:
In the interests of national security;
To prevent or detect serious crime;

Interception warrants may be issued on serious crime grounds by Scottish Ministers, by virtue of arrangements under the Scotland Act 1998.
In this code references to the Secretary of State should be read as including Scottish Ministers where appropriate. The functions of the
Scottish Ministers also cover renewal and cancellation arrangements.

To safeguard the economic well-being of the UK so far as those interests are also
relevant to the interests of national security.
3.6

These purposes are set out in section 5(3) of RIPA. The Secretary of State must also
believe that the interception is proportionate to what is sought to be achieved by that
conduct. This involves balancing the intrusiveness of the interference against the need
for it in operational terms. Interception of communications will not be proportionate if it is
excessive in the circumstances of the case or if the information which is sought could
reasonably be obtained by other means.

Meaning of telecommunications service

3.7

Section 2 of RIPA defines telecommunication service as any service that consists in the
provision of access to, and of facilities for making use of, any telecommunication system.
Section 2(8A) of RIPA makes clear that any service which consists in or includes
facilitating the creation, management or storage of communications transmitted, or that
may be transmitted, by means of such a system are included within the meaning of
telecommunications service. Internet based services such as web-based email,
messaging applications and cloud-based services are, therefore, covered by this
definition. The definition of telecommunications service in RIPA is intentionally broad so
that it remains relevant for new technologies.

Implementation of warrants
3.8

After a warrant has been issued it will be forwarded to the person to whom it is
addressed - in practice the intercepting agency which submitted the application. Section
11 of RIPA then permits the intercepting agency to carry out the interception, or to
require the assistance of other persons in giving effect to the warrant. A warrant may be
served on any person who is required to provide assistance in relation to that warrant.

3.9

Where a copy of an interception warrant has been served on anyone providing a postal
service or a public telecommunications service, or who has control of a
telecommunication system in the UK, that person is under a duty to take all such steps
for giving effect to the warrant as are notified to him or her by or on behalf of the person
to whom the warrant is addressed. This applies to any company offering services to
customers in the UK, irrespective of where the company is based. Section 11 also sets
out the means by which that duty may be enforced.

3.10

Section 11(2B) of RIPA provides that service of a copy of a warrant on a person outside
the UK may (in addition to electronic or other means of service) be effected in any of the
following ways:
By serving it at the persons principal office within the UK or, if the person does not have
an office in the UK, at any place in the UK where the person carries on business or
conducts activities;
At an address in the UK specified by the person;
By making it available for inspection at a place in the UK (if neither of the above two
methods is reasonably practicable).

Provision of reasonable assistance

3.11

Any person providing a postal service or a public telecommunications service, or who

has control of a telecommunications system in the UK, (referred to as communications
service providers (CSPs) in this code) may be required to provide assistance in giving
effect to an interception warrant. RIPA places a requirement on CSPs to take all such
steps for giving effect to the warrant as are notified to them (section 11(4) of RIPA). But
the steps which may be required are limited to those which it is reasonably practicable to
take (section 11(5)). When considering this test, section 11(5)(a) specifies that regard
must be had to any requirements or restrictions under the law of the country where the
CSP is based that are relevant to the taking of those steps. It also makes clear the
expectation that CSPs will seek to find ways to comply without giving rise to conflict of
laws. What is reasonably practicable should be agreed after consultation between the
CSP and the Government. If no agreement can be reached it will be for the Secretary of
State to decide whether to press forward with civil proceedings. Criminal proceedings
may also be instituted by, or with the consent of, the Director of Public Prosecutions.

3.12

Where the intercepting agency requires the assistance of a CSP in order to implement a
warrant, it should provide the following to the CSP:
A copy of the signed and dated warrant instrument;
The schedule setting out the numbers, addresses or other factors identifying the
communications to be intercepted by the CSP for warrants issued in accordance with
section 8(1);
A covering document from the intercepting agency (or the person acting on behalf of the
agency) requiring the assistance of the CSP and specifying any other details regarding
the means of interception and delivery as may be necessary. Contact details with respect
to the intercepting agency will either be provided in this covering document or will be
available in the handbook provided to all CSPs who maintain an interception capability.

Provision of interception capability

3.13

Persons who provide a public postal or telecommunications service, or plan to do so,

may be required to provide a permanent interception capability (under section 12 of
RIPA). The obligations the Secretary of State considers reasonable to impose on such
persons to ensure they have a capability are set out in an order made by the Secretary of
State and approved by Parliament2. Section 12(3A) of RIPA provides for the Secretary of
State to serve a notice on a company located outside the UK but providing
telecommunications services to customers within the UK, setting out the steps they must
take to ensure they can meet these obligations. The Government must seek to consult
with the CSP over the content of a notice before it is served.

3.14

Section 12(3B) of RIPA provides that where a notice is to be given to a person outside
the UK, the notice may (in addition to electronic or other means of service) be given to
the person:
By delivering it to the persons principal office within the UK or, if the person does not
have an office in the UK, to any place in the UK where the person carries on business or
conducts activities;
At an address in the UK specified by the person.

Regulation of Investigatory Powers (Maintenance of Interception Capability) Order 2002 - http://www.legislation.gov.uk/uksi/2002/1931

3.15

When served with a notice, a CSP, if it feels it unreasonable, may refer that notice to the
Technical Advisory Board (TAB) to consider the reasonableness of the technical
requirements that are being sought and the financial consequences. Details of how to
submit a notice to the TAB will be provided either before or at the time the notice is
served.

3.16

Any CSP obliged to maintain a permanent interception capability will be provided with a
handbook which will contain the basic information they require to respond to requests for
reasonable assistance for the interception of communications.

Duration of interception warrants

3.17

Interception warrants issued on serious crime grounds are valid for an initial period of
three months. Interception warrants issued on national security/economic well-being of
the UK grounds are valid for an initial period of six months. A warrant issued under the
urgency procedure (on any grounds) is valid for five working days following the date of
issue unless renewed by the Secretary of State.

3.18

Upon renewal, warrants issued on serious crime grounds are valid for a further period of
three months. Warrants renewed on national security/ economic well-being of the UK
grounds are valid for a further period of six months. These dates run from the date on the
renewal instrument.

3.19

Where modifications to an interception warrant are made, the warrant expiry date
remains unchanged. However, where the modification takes place under the urgency
provisions, the modification instrument expires after five working days following the date
of issue, unless it is renewed in line with the routine procedure.

3.20

Where a change in circumstance leads the intercepting agency to consider it no longer

necessary, proportionate or practicable for a warrant to be in force, the agency must
make a recommendation to the Secretary of State that it should be cancelled with
immediate effect.

Stored communications
3.21

Section 2(7) of RIPA defines a communication in the course of its transmission as

including any time when the communication is being stored on the communication
system in such a way as to enable the intended recipient to collect it or otherwise have
access to it. Making the contents of a communication stored in this way available to a
person other than the sender or intended recipient therefore constitutes interception. A
communication remains in the course of its transmission regardless of whether the
communication has previously been read, viewed or listened to. A communication stored
in this way remains in the course of its transmission.

3.22

Stored communications may also be accessed by means other than a warrant (see
chapter 9). For example, if a communication has been stored on a communication
system it may be obtained with lawful authority by means of an existing statutory power
such as a production order (under the Police and Criminal Evidence Act 19843) or a
search warrant. A production order is an order from a circuit judge 4, who must be

All references to the Police and Criminal Evidence Act 1984 shall be interpreted, insofar as the Code relates to activity in Northern Ireland, as
referring to the Police and Criminal Evidence (Northern Ireland) Order 1989.
4

Or a County court judge in Northern Ireland.

satisfied that i) an indictable offence has been committed, ii) the person holds the
material and iii) the material requested will be of substantial value to the investigation and
iv) it is in the public interest that the material should be produced.

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4. Special rules on interception with a

warrant
Collateral intrusion
4.1

Consideration should be given to any interference with the privacy of individuals who are
not the subject of the intended interception, especially where communications relating to
religious, medical, journalistic or legally privileged material may be involved, or where
communications between a Member of Parliament5 and another person on constituency
business may be involved. An application for an interception warrant should state
whether the interception is likely to give rise to a degree of collateral infringement of
privacy. A person applying for an interception warrant must also consider measures,
including the use of automated systems, to reduce the extent of collateral intrusion.
Where it is possible to do so, the application should specify those measures. These
circumstances and measures will be taken into account by the Secretary of State when
considering a warrant application made under s.8(1) of RIPA. Should an interception
operation reach the point where individuals other than the subject of the authorisation are
identified as investigative targets in their own right, consideration should be given to
applying for separate warrants covering those individuals.

Confidential information
4.2

Particular consideration should also be given in cases where the subject of the
interception might reasonably assume a high degree of privacy, or where confidential
information is involved. This includes where the communications relate to legally
privileged material; where confidential journalistic material may be involved;
where interception might involve communications between a medical professional or
minister of religion and an individual relating to the latters health or spiritual welfare; or
where communications between a Member of Parliament and another person on
constituency business may be involved.

4.3

Confidential journalistic material includes material acquired or created for the purposes of
journalism and held subject to an undertaking to hold it in confidence, as well as
communications resulting in information being acquired for the purposes of journalism
and held subject to such an undertaking. See also paragraphs 4.19 and 4.21 - 4.24 for
additional safeguards that should be applied in respect of confidential journalistic
material.

Communications subject to legal privilege

4.4

Section 98 of the Police Act 1997 describes those matters that are subject to legal
privilege in England and Wales. In Scotland, those matters subject to legal privilege
contained in section 33 of the Criminal Law (Consolidation) (Scotland) Act 1995 should
be adopted. With regard to Northern Ireland, Article 12 of the Police and Criminal
Evidence (Northern Ireland) Order 1989 should be referred to.

4.5

Legal privilege does not apply to communications made with the intention of furthering a
criminal purpose (whether the lawyer is acting unwittingly or culpably). Legally privileged
communications will lose their protection if there are grounds to believe, for example, that

References to a Member of Parliament include references to a Member of the UK Parliament, the European Parliament, the Scottish
Parliament, the Welsh Assembly and the Northern Ireland Assembly.

11

the professional legal adviser is intending to hold or use the information for a criminal
purpose. But privilege is not lost if a professional legal adviser is properly advising a
person who is suspected of having committed a criminal offence. The concept of legal
privilege applies to the provision of professional legal advice by any individual, agency or
organisation qualified to do so.
4.6

RIPA does not provide any special protection for legally privileged communications.
Nevertheless, intercepting such communications is particularly sensitive and may give
rise to issues under Article 6 (right to a fair trial) of the ECHR as well as engaging Article
8. The interception of communications subject to legal privilege is therefore subject to
additional safeguards under this code. The guidance set out below may in part depend
on whether matters subject to legal privilege have been obtained intentionally or
incidentally to other material which has been sought.

4.7

In general, any application for a warrant which is likely to result in the interception of
legally privileged communications should include, in addition to the reasons why it is
considered necessary for the interception to take place, an assessment of how likely it is
that communications which are subject to legal privilege will be intercepted. In addition, it
should state whether the purpose (or one of the purposes) of the interception is to obtain
privileged communications. Where the intention of the interception is not to acquire
communications subject to legal privilege, but it is likely that such communications will
nevertheless be acquired during interception, the application should identify the steps
which will be taken to mitigate the risk of obtaining legally privileged information from
those communications.

4.8

Where interception is intended to result in a person acquiring communications subject to

legal privilege, a warrant will only be issued if the Secretary of State is satisfied that there
are exceptional and compelling circumstances that make the warrant necessary. Such
circumstances will arise only in a very restricted range of cases, such as where there is a
threat to life or limb, or to national security, and the interception is reasonably regarded
as likely to yield intelligence necessary to counter the threat.

4.9

Further, in considering any such application, the Secretary of State must believe that the
proposed conduct is proportionate to what is sought to be achieved. In such
circumstances, the Secretary of State will be able to impose additional conditions such
as regular reporting arrangements, so as to be able to exercise his or her discretion on
whether a warrant should continue to have effect.

4.10

Where there is a renewal application in respect of a warrant which has resulted in the
obtaining of legally privileged material, that fact ought to be highlighted in the renewal
application.

4.11

Where a lawyer is the subject of an interception, it is possible that a substantial

proportion of the communications which will be intercepted will be between the lawyer
and his or her client(s) and will be subject to legal privilege. Therefore, in any case where
a lawyer is the subject of an interception, the Secretary of State should consider whether
the special safeguards outlined in this chapter apply. Any case where a lawyer is the
subject of an interception should also be notified to the Interception of Communications
Commissioner during his or her next inspection and any material which has been
retained should be made available to the Commissioner on request.

4.12

In addition to safeguards governing the handling and retention of intercept material as

provided for in section 15 of RIPA, officials who examine intercepted communications
should be alert to any intercept material which may be subject to legal privilege. Where
12

there is doubt as to whether the communications are subject to legal privilege, advice
should be sought from a legal adviser within the relevant intercepting agency. Similar
advice should also be sought where there is doubt over whether communications are not
subject to legal privilege due to the in furtherance of a criminal purpose exception.
4.13

Other than in exceptional circumstances, material subject to legal privilege must not be
acted on or further disseminated unless a legal adviser has been consulted on the
lawfulness (including the necessity and proportionality) of such action or dissemination.

4.14

The retention of legally privileged material, or its dissemination to an outside body,

should be accompanied by a clear warning that it is subject to legal privilege. It should be
safeguarded by taking reasonable steps to remove the risk of it becoming available, or its
contents becoming known, to any person whose possession of it might prejudice any
criminal or civil proceedings to which the information relates. Neither the Crown
Prosecution Service lawyer nor any other prosecuting authority lawyer with conduct of a
prosecution should have sight of any communications subject to legal privilege, held by
the relevant public authority, with any possible connection to the proceedings. In respect
of civil proceedings, there can be no circumstances under which it is proper for any
public authority to seek to rely on communications subject to legal privilege in order to
gain a litigation advantage over another party in legal proceedings.

4.15

In order to safeguard against any risk of prejudice or accusation of abuse of process,

public authorities must also take all reasonable steps to ensure that (so far as
practicable) lawyers or policy officials with conduct of legal proceedings should not see
legally privileged communications relating to those proceedings (whether the privilege is
that of the other party to those proceedings or that of a third party). If such
circumstances do arise, the public authority must seek independent advice from
Counsel and, if there is assessed to be a risk that such material could yield a litigation
advantage, the direction of the Court.

4.16

In those cases where communications which include legally privileged communications

have been intercepted and retained, the matter should be reported to the Interception of
Communications Commissioner as soon as reasonably practicable, as agreed with the
Commissioner. Any material that is still being retained should be made available to him
or her if requested, including detail of whether that material has been disseminated.

4.17

Material which has been identified as legally privileged should be retained only where it is
necessary and proportionate to do so for one or more of the authorised purposes set out
in section 15(4). It must be securely destroyed when its retention is no longer needed for
those purposes. If such information is retained, it must be reviewed at reasonable
intervals to confirm that the justification for its retention is still valid.

4.18

The safeguards set out in paragraphs 4.10 4.17 also apply to any s.8(4) material (see
chapter 6) which is selected for examination and which is subject to legal privilege.

Communications involving confidential journalistic material, confidential personal

information, communications between a Member of Parliament and another person on
constituency business
4.19

Particular consideration must also be given to the interception of communications that

involve confidential journalistic material, confidential personal information, or
communications between a Member of Parliament and another person on constituency
business. Confidential journalistic material is explained at paragraph 4.3. Confidential
personal information is information held in confidence concerning an individual (whether
13

living or dead) who can be identified from it, and the material in question relates to his or
her physical or mental health or to spiritual counselling. Such information can include
both oral and written communications. Such information as described above is held in
confidence if it is held is subject to an express or implied undertaking to hold it in
confidence, or is subject to a restriction on disclosure or an obligation of confidentiality
contained in existing legislation. For example, confidential personal information might
include consultations between a health professional and a patient, or information from a
patients medical records.
4.20

Spiritual counselling is defined as conversations between an individual and a Minister of

Religion acting in his or her official capacity, and where the individual being counselled is
seeking, or the Minister is imparting, forgiveness, absolution or the resolution of
conscience with the authority of the Divine Being(s) of their faith.

4.21

Where the intention is to acquire confidential personal information, the reasons should be
clearly documented and the specific necessity and proportionality of doing so should be
carefully considered. If the acquisition of confidential personal information is likely but
not intended, any possible mitigation steps should be considered and, if none is
available, consideration should be given to adopting special handling arrangements
within the intercepting agency.

4.22

Material which has been identified as confidential information should be retained only
where it is necessary and proportionate to do so for one or more of the authorised
purposes set out in section 15(4). It must be securely destroyed when its retention is no
longer needed for those purposes. If such information is retained, it must be reviewed at
reasonable intervals to confirm that the justification for its retention is still valid.

4.23 Where confidential information is retained or disseminated to an outside body,

reasonable steps should be taken to mark the information as confidential. Where there is
any doubt as to the handling or dissemination of confidential information, advice should
be sought from a legal adviser within the relevant intercepting agency and before any
further dissemination of the material takes place.
4.24 Any case where confidential information is retained should be notified to the Interception
of Communications Commissioner as soon as reasonably practicable, as agreed with the
Commissioner. Any material which has been retained should be made available to the
Commissioner on request.
4.25

The safeguards set out in paragraphs 4.21 4.24 also apply to any s.8(4) material (see
chapter 6) which is selected for examination and which is confidential information.

14

5. Interception warrants (section 8(1))

5.1

This section applies to the interception of communications by means of a warrant

complying with section 8(l) of RIPA. This type of warrant may be issued in respect of the
interception of communications carried on any postal service or telecommunications
system as defined in section 2(l) of RIPA (including a private telecommunications
system). Responsibility for the issuing of interception warrants rests with the Secretary of
State.

Application for a section 8(1) warrant

5.2

An application for a warrant is made to the Secretary of State. Interception warrants,

when issued, are addressed to the person who submitted the application. A copy may
then be served on any person who may be able to provide assistance in giving effect to
that warrant. Prior to submission to the Secretary of State, each application must be
subject to a review within the agency seeking the warrant. This review involves scrutiny
by more than one official, who will consider whether the application is for a purpose
falling within section 5(3) of RIPA and whether the interception proposed is both
necessary and proportionate. Each application, a copy of which must be retained by the
intercepting agency, should contain the following information:
Background to the operation in question;
Person or premises to which the application relates (and how the person or premises
feature in the operation);
Description of the communications to be intercepted, details of the CSP(s) and an
assessment of the feasibility of the interception operation where this is relevant;6
Description of the conduct to be authorised or the conduct it is necessary to undertake in
order to carry out what is authorised or required by the warrant, and the obtaining of
related communications data.7 This conduct may include the interception of other
communications not specifically identified by the warrant as foreseen under section
5(6)(a);
An explanation of why the interception is considered to be necessary under the
provisions of section 5(3);
Consideration of why the conduct to be authorised by the warrant is proportionate to what
is sought to be achieved by that conduct;
Consideration of any collateral intrusion and why that intrusion is justified in the
circumstances;
Whether the communications in question might affect religious, medical or journalistic
confidentiality or legal privilege, or communications between a Member of Parliament and
another person on constituency business;
Where an application is urgent, the supporting justification;
An assurance that all material intercepted will be handled in accordance with the
safeguards required by section 15 of RIPA (see paragraph 7.2).

This assessment is normally based upon information provided by the relevant communications service provider.
Section 20 of the Act defines related communications data as being that data (within the meaning of Part I Chapter II of the Act) as is obtained
by, or in connection with, the interception (under warrant); and relates to the communication to the sender or recipient, or intended recipient of
the communication.
7

15

Authorisation of a section 8(1) warrant

5.3

Before issuing a warrant under section 8(1), the Secretary of State must believe the
warrant is necessary:8
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
UK, so far as those interests are also relevant to the interests of national security.

5.4

The Secretary of State will not issue a warrant on section 5(3)(c) grounds if this direct link
between the economic well-being of the UK and national security is not established. Any
application for a warrant on section 5(3)(c) grounds should therefore explain how, in the
applicants view, the economic well-being of the UK which is to be safeguarded is directly
related to national security on the facts of the case.

5.5

The Secretary of State must also consider that the conduct authorised by the warrant is
proportionate to what it seeks to achieve (section 5(2)(b)). In considering necessity and
proportionality, the Secretary of State must take into account whether the information
sought could reasonably be obtained by other means (section 5(4)).

Urgent authorisation of a section 8(1) warrant

5.6

RIPA makes provision (section 7(l)(b)) for cases in which an interception warrant is
required urgently, yet the Secretary of State is not available to sign the warrant. In these
cases the Secretary of State will still personally authorise the interception but the warrant
is signed by a senior official, following discussion of the case between officials and the
Secretary of State. RIPA restricts issuing warrants in this way to urgent cases where the
Secretary of State has expressly authorised the issue of the warrant (section 7(2)(a)),
and requires the warrant to contain a statement to that effect (section 7(4)(a)). A warrant
issued under the urgency procedure lasts for five working days following the day of issue
unless renewed by the Secretary of State. If it is renewed it expires after three months in
the case of serious crime, or six months in the case of national security or economic wellbeing, in the same way as other non-urgent section 8(1) warrants.

Format of a section 8(1) warrant

5.7

Each warrant comprises two sections: a warrant instrument signed by the Secretary of
State listing the subject of the interception or set of premises - a copy of which each CSP
will receive - and a schedule or set of schedules listing the communications to be
intercepted. Only the schedule relevant to the communications that can be intercepted by
the specified CSP may be provided to that CSP.

5.8

The warrant instrument should include:

The name or description of the interception subject or of a set of premises in relation to
which the interception is to take place;
A warrant reference number; and
The persons who may subsequently modify the scheduled part of the warrant in an
urgent case (if authorised in accordance with section 10(8) of RIPA).

A single warrant can be justified on more than one of the grounds listed.

16

5.9

The scheduled part of the warrant will comprise one or more schedules. Each schedule
should contain:
The name of the communication service provider, or the other person who is to take
action;
A warrant reference number; and
A means of identifying the communications to be intercepted.9

Modification of section 8(1) warrant

5.10

Interception warrants may be modified under the provisions of section 10 of RIPA. The
unscheduled part of a warrant may only be modified by the Secretary of State or, in an
urgent case, by a senior official with the express authorisation of the Secretary of State.
In these cases, a statement of that fact must be endorsed on the modifying instrument,
and the modification ceases to have effect after five working days following the date of
issue unless it is renewed by the Secretary of State. The modification will then expire
upon the expiry date of the warrant.

5.11

Scheduled parts of a warrant may be modified by the Secretary of State, or by a senior

official10 acting upon his or her behalf. A modification to the scheduled part of the
warrant may include the addition of a new schedule relating to a CSP on whom a copy of
the warrant has not been previously served. Modifications made in this way expire at the
same time as the warrant expires. There also exists a duty to modify a warrant by
deleting a communication identifier if it is no longer relevant. When a modification is
sought to delete a number or other communication identifier, the relevant CSP must be
advised and interception suspended before the modification instrument is signed.

5.12

The person to whom the warrant is addressed or a senior official within the same agency
may modify the scheduled part of the warrant if the warrant was issued or renewed on
national security grounds. Where the warrant specifically authorises it, the scheduled part
of the warrant may also be amended in an urgent case by the person to whom a warrant
is addressed or a subordinate person (identified in the warrant) within the same agency

5.13

Modifications of this kind are valid for five working days following the date of issue unless
the modification instrument is endorsed by a senior official acting on behalf of the
Secretary of State. Where the modification is endorsed in this way, the modification
expires upon the expiry date of the warrant.

Renewal of a section 8(1) warrant

5.14

The Secretary of State may renew a warrant at any point before its expiry date.
Applications for renewals must be made to the Secretary of State and should contain an
update of the matters outlined in paragraph 5.2 above. In particular, the applicant should
give an assessment of the value of interception to the operation to date and explain why
it is considered that interception continues to be necessary for one or more of the
purposes in section 5(3), and why it is considered that interception continues to be
proportionate.

This may include addresses, numbers, apparatus or other factors, or combination of factors, that are to be used for identifying communications
(section 8(2) of the Act).
10

The official to whom the warrant is addressed, or any of his subordinates, may only modify the scheduled parts of the warrant in the
circumstances referred to in paragraph 5.12.

17

5.15

Where the Secretary of State is satisfied that the interception continues to meet the
requirements of RIPA the Secretary of State may renew the warrant.

5.16

A copy of the warrant renewal instrument will be forwarded to all relevant CSPs on whom
a copy of the original warrant instrument and a schedule have been served, providing
they are still actively assisting. A warrant renewal instrument will include the reference
number of the warrant or warrants being renewed under this single instrument.

Warrant cancellation
5.17

The Secretary of State is under a duty to cancel an interception warrant if, at any time
before its expiry date, the Secretary of State is satisfied that the warrant is no longer
necessary on grounds falling within section 5(3) of RIPA. Intercepting agencies will
therefore need to keep their warrants under continuous review. In practice, the
responsibility to cancel a warrant will be exercised by an appropriate official on behalf of
the Secretary of State.

5.18

The cancellation instrument should be addressed to the person to whom the warrant was
issued (the intercepting agency) and should include the reference number of the warrant
and the description of the person or premises specified in the warrant. A copy of the
cancellation instrument should be sent to those CSPs who have held a copy of the
warrant instrument and accompanying schedule during the preceding twelve months.

Records
5.19

The oversight regime allows the Interception of Communications Commissioner to

inspect the warrant application upon which the Secretary of States decision was based,
and the applicant may be required to justify the content. Each intercepting agency should
keep the following to be made available for scrutiny by the Commissioner as he or she
may require:
all applications made for warrants complying with section 8(1) and applications made for
the renewal of such warrants;
all warrants, and renewals and copies of schedule modifications (if any);
where any application is refused, the grounds for refusal as given by the Secretary of
State; and
the dates on which interception started and stopped.

5.20

Records should also be kept of the arrangements by which the requirements of section
15(2) (minimisation of copying and distribution of intercepted material) and section 15(3)
(destruction of intercepted material) are to be met. For further details see the section on
Safeguards.

5.21

The term intercepted material is used throughout to include copies, extracts or

summaries made from the intercepted material as well as the intercepted material itself.

18

6. Interception warrants (section 8(4))

6.1

This section applies to the interception of external communications by means of a

warrant complying with section 8(4) of RIPA.

6.2

In contrast to section 8(1), a section 8(4) warrant instrument need not name or describe
the interception subject or a set of premises in relation to which the interception is to take
place. Neither does section 8(4) impose an express limit on the number of external
communications which may be intercepted. For example, if the requirements of sections
8(4) and (5) are met, then the interception of all communications transmitted on a
particular route or cable, or carried by a particular CSP, could, in principle, be lawfully
authorised. This reflects the fact that section 8(4) interception is an intelligence gathering
capability, whereas section 8(1) interception is primarily an investigative tool that is used
once a particular subject for interception has been identified.

6.3

Responsibility for the issuing of interception warrants under section 8(4) of RIPA rests
with the Secretary of State. When the Secretary of State issues a warrant of this kind, it
must be accompanied by a certificate. The certificate ensures that a selection process is
applied to the intercepted material so that only material described in the certificate is
made available for human examination. If the intercepted material cannot be selected to
be read, looked at or listened to with due regard to proportionality and the terms of the
certificate, then it cannot be read, looked at or listened to by anyone.

Section 8(4) interception in practice

6.4

A section 8(4) warrant authorises the interception of external communications. Where a

section 8(4) warrant results in the acquisition of large volumes of communications, the
intercepting agency will ordinarily apply a filtering process to automatically discard
communications that are unlikely to be of intelligence value. Authorised persons within
the intercepting agency may then apply search criteria to select communications that are
likely to be of intelligence value in accordance with the terms of the Secretary of State's
certificate. Before a particular communication may be accessed by an authorised person
within the intercepting agency, the person must provide an explanation of why it is
necessary for one of the reasons set out in the certificate accompanying the warrant
issued by the Secretary of State, and is proportionate in the particular circumstances.
This process is subject to internal audit and external oversight by the Interception of
Communications Commissioner. Where the Secretary of State is satisfied that it is
necessary, he or she may authorise the selection of communications of an individual who
is known to be in the British Islands. In the absence of such an authorisation, an
authorised person must not select such communications.11

Definition of external communications

6.5

External communications are defined by RIPA to be those which are sent or received
outside the British Islands. They include those which are both sent and received outside
the British Islands, whether or not they pass through the British Islands in the course of
their transmission. They do not include communications both sent and received in the
British Islands, even if they pass outside the British Islands en route. For example, an
email from a person in London to a person in Birmingham will be an internal, not external
communication for the purposes of section 20 of RIPA, whether or not it is routed via IP

11

Section 16(2) of RIPA provides that in the absence of such an authorisation an authorised person must not select communications for
examination by factors referable to an individual known to be in the British Islands and with the purpose of identifying material contained in
communications sent by or intended for such an individual.

19

addresses outside the British Islands, because the sender and intended recipient are
within the British Islands.

Intercepting non-external communications under section 8(4)

warrants
6.6

Section 5(6)(a) of RIPA makes clear that the conduct authorised by a section 8(4)
warrant may, in principle, include the interception of communications which are not
external communications to the extent this is necessary in order to intercept the external
communications to which the warrant relates.

6.7

When conducting interception under a section 8(4) warrant, an intercepting agency must
use its knowledge of the way in which international communications are routed,
combined with regular surveys of relevant communications links, to identify those
individual communications bearers that are most likely to contain external
communications that will meet the descriptions of material certified by the Secretary of
State under section 8(4). It must also conduct the interception in ways that limit the
collection of non-external communications to the minimum level compatible with the
objective of intercepting wanted external communications.

Application for a section 8(4) warrant

6.8

An application for a warrant is made to the Secretary of State. Interception warrants,

when issued, are addressed to the person who submitted the application. The purpose of
such a warrant will typically reflect one or more of the intelligence priorities set by the
Joint Intelligence Committee (JIC)12.

6.9

Prior to submission, each application is subject to a review within the agency making the
application. This involves scrutiny by more than one official, who will consider whether
the application is for a purpose falling within section 5(3) of RIPA and whether the
interception proposed is both necessary and proportionate.

6.10

Each application, a copy of which must be retained by the applicant, should contain the
following information:
Background to the operation in question:
o Description of the communications to be intercepted, details of the CSP(s) and an
assessment of the feasibility of the operation where this is relevant;13 and
o Description of the conduct to be authorised, which must be restricted to the
interception of external communications, or the conduct (including the interception
of other communications not specifically identified by the warrant as foreseen
under section 5(6)(a) of RIPA) it is necessary to undertake in order to carry out
what is authorised or required by the warrant, and the obtaining of related
communications data.14
The certificate that will regulate examination of intercepted material;
An explanation of why the interception is considered to be necessary for one or more of
the section 5(3) purposes;

12

The Joint Intelligence Committee is part of the Cabinet Office and is under the authority of the Secretary of State. One of the JICs functions
is to set, subject to Ministerial approval, the requirements and priorities for intelligence gathering by the Intelligence Services.
13

This assessment is normally based upon information provided by the relevant communications service provider.

20

A consideration of why the conduct to be authorised by the warrant is proportionate to

what is sought to be achieved by that conduct;
Where an application is urgent, supporting justification;
An assurance that intercepted material will be read, looked at or listened to only so far as
it is certified and it meets the conditions of sections 16(2)-16(6) of RIPA; and
An assurance that all material intercepted will be handled in accordance with the
safeguards required by sections 15 and 16 of RIPA (see paragraphs 7.2 and 7.10
respectively).

Authorisation of a section 8(4) warrant

6.11

Before issuing a warrant under section 8(4), the Secretary of State must believe the
warrant is necessary:
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 UK so far as those
interests are also relevant to the interests of national security.

6.12

The power to issue an interception warrant for the purpose of safeguarding the economic
well-being of the UK (as provided for by section 5(3)(c) of RIPA), may only be exercised
where it appears to the Secretary of State that the circumstances are relevant to the
interests of national security. The Secretary of State will not issue a warrant on section
5(3)(c) grounds if the direct link between the economic well-being of the UK and national
security is not established. Any application for a warrant on section 5(3)(c) grounds
should therefore identify the circumstances that are relevant to the interests of national
security.

6.13

The Secretary of State must also consider that the conduct authorised by the warrant is
proportionate to what it seeks to achieve (section 5(2)(b)). In considering necessity and
proportionality, the Secretary of State must take into account whether the information
sought could reasonably be obtained by other means (section 5(4)).

6.14

When the Secretary of State issues a warrant of this kind, it must be accompanied by a
certificate in which the Secretary of State certifies that he or she considers examination
of the intercepted material to be necessary for one or more of the section 5(3) purposes.
The purpose of the statutory certificate is to ensure that a selection process is applied to
intercepted material so that only material described in the certificate is made available for
human examination. Any certificate must broadly reflect the Priorities for Intelligence
Collection set by the JIC for the guidance of the intelligence agencies. For example, a
certificate might provide for the examination of material providing intelligence on
terrorism (as defined in the Terrorism Act 2000) or on controlled drugs (as defined by the
Misuse of Drugs Act 1971). The Interception of Communications Commissioner must
review any changes to the descriptions of material specified in a certificate.

6.15

The Secretary of State has a duty to ensure that arrangements are in force for securing
that only that material which has been certified as necessary for examination for a
section 5(3) purpose, and which meets the conditions set out in section 16(2) to section
16(6) is, in fact, read, looked at or listened to. The Interception of Communications
Commissioner is under a duty to review the adequacy of those arrangements.

21

Urgent authorisation of a section 8(4) warrant

6.16

RIPA makes provision (section 7(l)(b)) for cases in which an interception warrant is
required urgently, yet the Secretary of State is not available to sign the warrant. In these
cases the Secretary of State will still personally authorise the interception but the warrant
is signed by a senior official, following discussion of the case between officials and the
Secretary of State. RIPA restricts issue of warrants in this way to urgent cases where the
Secretary of State has personally expressly authorised the issue of the warrant (section
7(2)(a)), and requires the warrant to contain a statement to that effect (section 7(4)(a)).

6.17

A warrant issued under the urgency procedure lasts for five working days following the
date of issue unless renewed by the Secretary of State, in which case it expires after
three months in the case of serious crime or six months in the case of national security or
economic well-being, in the same way as other section 8(4) warrants.

Format of a section 8(4) warrant

6.18

Each warrant is addressed to the person who submitted the application. A copy may then
be served upon such providers of communications services as he or she believes will be
able to assist in implementing the interception. CSPs will not normally receive a copy of
the certificate. The warrant should include the following:
A description of the communications to be intercepted;
The warrant reference number; and
The persons who may subsequently modify the certificate applicable to the warrant in an
urgent case (if authorised in accordance with section 10(7) of RIPA).

Modification of a section 8(4) warrant and/or certificate

6.19

Interception warrants and certificates may be modified under the provisions of section 10
of RIPA. A warrant may only be modified by the Secretary of State or, in an urgent case,
by a senior official with the express authorisation of the Secretary of State. In these
cases a statement of that fact must be endorsed on the modifying instrument, and the
modification ceases to have effect after five working days following the date of issue
unless it is endorsed by the Secretary of State.

6.20

A certificate must be modified by the Secretary of State, except in an urgent case where
a certificate may be modified by a senior official provided that the official holds a position
in which he or she is expressly authorised by provisions contained in the certificate to
modify the certificate on the Secretary of States behalf, or the Secretary of State has
expressly authorised the modification and a statement of that fact is endorsed on the
modifying instrument. In the latter case, the modification ceases to have effect after five
working days following the date of issue unless it is endorsed by the Secretary of State.

6.21

Where the Secretary of State is satisfied that it is necessary, a certificate may be

modified to authorise the selection of communications of an individual in the British
Islands.15 An individuals location should be assessed using all available information. If it

15

Section 16(3) of RIPA provides that a certificate may be modified to authorise the selection of communications sent ot received outside the
British Islands according to a factor (for example name, email address or passport number) which is referable to an individual who is known for
the time being to be in the British Islands and where the purpose is the identification of material contained in communications sent by that
individual or intended for him.

22

is not possible, using that information to determine definitively where the individual is
located, an informed assessment should be made, in good faith, as to the individuals
location. If an individual is strongly suspected to be in the UK,.the arrangements set out
in this paragraph will apply.

Renewal of a section 8(4) warrant

6.22

The Secretary of State may renew a warrant at any point before its expiry date.
Applications for renewals are made to the Secretary of State and contain an update of
the matters outlined in paragraph 6.9 above. In particular, the applicant must give an
assessment of the value of interception to date and explain why it is considered that
interception continues to be necessary for one or more of the purposes in section 5(3),
and why it is considered that interception continues to be proportionate

6.23

Where the Secretary of State is satisfied that the interception continues to meet the
requirements of RIPA, the Secretary of State may renew the warrant. Where the warrant
is issued on serious crime grounds, the renewed warrant is valid for a further three
months. Where it is issued on national security/ economic well-being grounds the
renewed warrant is valid for six months. These dates run from the date of signature on
the renewal instrument.

6.24

In those circumstances where the assistance of CSPs has been sought, a copy of the
warrant renewal instrument will be forwarded to all those on whom a copy of the original
warrant instrument has been served, providing they are still actively assisting. A renewal
instrument will include the reference number of the warrant or warrants being renewed
under this single instrument.

Warrant cancellation
6.25

The Secretary of State must cancel an interception warrant if, at any time before its
expiry date, he or she is satisfied that the warrant is no longer necessary on grounds
falling within section 5(3) of RIPA. Intercepting agencies will therefore need to keep their
warrants under continuous review. In practice, the responsibility to cancel a warrant will
be exercised by an appropriate official on behalf of the Secretary of State.

6.26

The cancellation instrument will be addressed to the person to whom the warrant was
issued (the intercepting agency). A copy of the cancellation instrument should be sent to
those CSPs, if any, who have given effect to the warrant during the preceding twelve
months.

Records
6.27

The oversight regime allows the Interception of Communications Commissioner to

inspect the warrant application upon which the Secretary of States decision is based,
and the interception agency may be required to justify the content. Each intercepting
agency should keep the following to be made available for scrutiny by the Commissioner
as he or she may require:
all applications made for warrants complying with section 8(4), and applications made for
the renewal of such warrants;
all warrants and certificates, and copies of renewal and modification instruments (if any);

23

where any application is refused, the grounds for refusal as given by the Secretary of
State;
the dates on which interception started and stopped.
6.28

Records should also be kept of the arrangements for securing that only material which
has been certified for examination for a purpose under section 5(3) and which meets the
conditions set out in section 16(2) 16(6) of RIPA in accordance with section 15 of RIPA
is, in fact, read looked at or listened to. Records should be kept of the arrangements by
which the requirements of section 15(2) (minimisation of copying and distribution of
intercepted material) and section 15(3) (destruction of intercepted material) are to be
met. For further details see the chapter on Safeguards.

24

7. Safeguards
7.1

All material intercepted under the authority of a warrant complying with section 8(1) or
section 8(4) of RIPA and any related communications data16 must be handled in
accordance with safeguards which the Secretary of State has approved in conformity
with the duty imposed on him or her by RIPA. These safeguards are made available to
the Interception of Communications Commissioner, and they must meet the
requirements of section 15 of RIPA which are set out below. In addition, the safeguards
in section 16 of RIPA apply to warrants complying with section 8(4). Any breach of these
safeguards must be reported to the Interception of Communications Commissioner. The
intercepting agencies must keep their internal safeguards under periodic review to
ensure that they remain up-to-date and effective. During the course of such periodic
reviews, the agencies must consider whether more of their internal arrangements might
safely and usefully be put into the public domain.

The section 15 safeguards

7.2

Section 15 of RIPA requires that disclosure, copying and retention of intercepted material
is limited to the minimum necessary for the authorised purposes. Section 15(4) of RIPA
provides that something is necessary for the authorised purposes if the intercepted
material:
continues to be, or is likely to become, necessary for any of the purposes set out in
section 5(3) namely, in the interests of national security, for the purpose of preventing
or detecting serious crime, or for the purpose, in circumstances appearing to the
Secretary of State to be relevant to the interests of national security, of safeguarding the
economic wellbeing of the UK17;
is necessary for facilitating the carrying out of the functions of the Secretary of State
under Chapter I of Part I of RIPA;
is necessary for facilitating the carrying out of any functions of the Interception of
Communications Commissioner or the Tribunal;
is necessary to ensure that a person conducting a criminal prosecution has the
information needed to determine what is required of him or her by his or her duty to
secure the fairness of the prosecution; or
is necessary for the performance of any duty imposed by the Public Record Acts.

Dissemination of intercepted material

7.3

The number of persons to whom any of the intercepted material is disclosed, and the
extent of disclosure, is limited to the minimum that is necessary for the authorised
purposes set out in section 15(4) of RIPA. This obligation applies equally to disclosure to
additional persons within an agency, and to disclosure outside the agency. It is enforced
by prohibiting disclosure to persons who have not been appropriately vetted and also by
the need-to-know principle: intercepted material must not be disclosed to any person
unless that persons duties, which must relate to one of the authorised purposes, are
such that he or she needs to know about the intercepted material to carry out those

16

References in this code to intercepted material include for the purposes of section 15 any related communications data. Further information
regarding the use of related communications data is to be found in the Acquisition and Disclosure of Communications Data Code of Practice.
17

Intercepted material and related communications data obtained for one purpose can, where it is necessary and proportionate to do so, be
disclosed, copied and retained for another.

25

duties. In the same way, only so much of the intercepted material may be disclosed as
the recipient needs. For example, if a summary of the intercepted material will suffice, no
more than that should be disclosed.
7.4

The obligations apply not just to the original interceptor, but also to anyone to whom the
intercepted material is subsequently disclosed. In some cases this will be achieved by
requiring the latter to obtain the originators permission before disclosing the intercepted
material further. In others, explicit safeguards are applied to secondary recipients.

Copying
7.5

Intercepted material may only be copied to the extent necessary for the authorised
purposes set out in section 15(4) of RIPA. Copies include not only direct copies of the
whole of the intercepted material, but also extracts and summaries which identify
themselves as the product of an interception, and any record referring to an interception
which includes the identities of the persons to or by whom the intercepted material was
sent. The restrictions are implemented by requiring special treatment of such copies,
extracts and summaries that are made by recording their making, distribution and
destruction.

Storage
7.6

Intercepted material, and all copies, extracts and summaries of it, must be handled and
stored securely, so as to minimise the risk of loss or theft. It must be held so as to be
inaccessible to persons without the required level of vetting. This requirement to store
intercept product securely applies to all those who are responsible for handling it,
including CSPs. The details of what such a requirement will mean in practice for CSPs
will be set out in the discussions they have with the Government before a Section 12
Notice is served (see paragraph 3.13).

Destruction
7.7

Intercepted material, and all copies, extracts and summaries which can be identified as
the product of an interception, must be marked for deletion and securely destroyed as
soon as possible once it is no longer needed for any of the authorised purposes. If such
intercepted material is retained, it should be reviewed at appropriate intervals to confirm
that the justification for its retention is still valid under section 15(3) of RIPA.

7.8

Where an intercepting agency receives unanalysed intercepted material and related

communications data from interception under a section 8(4) warrant, the agency must
specify (or require to be determined on a system by system basis) maximum retention
periods for different categories of the data which reflect its nature and intrusiveness. The
specified periods should normally be no longer than two years, and should be agreed
with the Interception of Communications Commissioner. Data may only be retained for
longer than the applicable maximum retention periods if prior authorisation is obtained
from a senior official within the particular intercepting agency on the basis that continued
retention of the data has been assessed to be necessary and proportionate. If continued
retention of any such data is thereafter assessed to no longer meet the tests of necessity
and proportionality, it must be deleted. So far as possible, all retention periods should be
implemented by a process of automated deletion, which is triggered once the applicable
maximum retention period has been reached for the data at issue.

26

Personnel security
7.9

All persons who may have access to intercepted material or need to see any reporting in
relation to it must be appropriately vetted. On an annual basis, managers must identify
any concerns that may lead to the vetting of individual members of staff being
reconsidered. The vetting of each individual member of staff must also be periodically
reviewed. Where it is necessary for an officer of one agency to disclose intercepted
material to another, it is the formers responsibility to ensure that the recipient has the
necessary clearance.

The section 16 safeguards

7.10

Section 16 provides for additional safeguards in relation to intercepted material gathered

under section 8(4) warrants, requiring that the safeguards:
ensure that intercepted material is read, looked at or listened to by any person only to the
extent that the intercepted material is certified; and
regulate the use of selection factors that refer to the communications of individuals
known to be currently in the British Islands.

7.11

In addition, any individual selection of intercepted material must be proportionate in the

particular circumstances (given section 6(1) of the Human Rights Act 1998).

7.12

The certificate ensures that a selection process is applied to material intercepted under
section 8(4) warrants so that only material described in the certificate is made available
for human examination (in the sense of being read, looked at or listened to). No official is
permitted to gain access to the data other than as permitted by the certificate.

7.13

In general, automated systems must, where technically possible, be used to effect the
selection in accordance with section 16(1) of RIPA. As an exception, a certificate may
permit intercepted material to be accessed by a limited number of specifically authorised
staff without having been processed or filtered by the automated systems. Such access
may only be permitted to the extent necessary to determine whether the material falls
within the main categories to be selected under the certificate, or to ensure that the
methodology being used remains up to date and effective. Such checking must itself be
necessary on the grounds specified in section 5(3) of RIPA. Once those functions have
been fulfilled, any copies made of the material for those purposes must be destroyed in
accordance with section 15(3) of RIPA. Such checking by officials must be kept to an
absolute minimum; whenever possible, automated selection techniques should be used
instead. Checking will be kept under review by the Interception of Communications
Commissioner during his or her inspections.

7.14

Material gathered under a section 8(4) warrant should be read, looked at or listened to
only by authorised persons who receive regular mandatory training regarding the
provisions of RIPA and specifically the operation of section 16 and the requirements of
necessity and proportionality. These requirements and procedures must be set out in
internal guidance provided to all authorised persons and the attention of all authorised
persons must be specifically directed to the statutory safeguards. All authorised persons
must be appropriately vetted (see paragraph 7.9 for further information).

27

7.15

Prior to an authorised person being able to read, look at or listen to material, a record18
should be created setting out why access to the material is required consistent with, and
pursuant to, section 16 and the applicable certificate, and why such access is
proportionate. Save where the material or automated systems are being checked as
described in paragraph 7.13, the record must indicate by reference to specific factors, the
material to which access is being sought and systems should, to the extent possible,
prevent access to the material unless such a record has been created. The record
should include any circumstances that are likely to give rise to a degree of collateral
infringement of privacy, and any measures taken to reduce the extent of the collateral
intrusion. All records must be retained for the purposes of subsequent examination or
audit.

7.16

Access to the material as described in paragraph 7.15 must be limited to a defined period
of time, although access may be renewed. If access is renewed, the record must be
updated with the reason for the renewal. Systems must be in place to ensure that if a
request for renewal is not made within that period, then no further access will be granted.
When access to the material is no longer sought, the reason for this must also be
explained in the record.

7.17

Periodic audits should be carried out to ensure that the requirements set out in section
16 of RIPA and Chapter 3 of this code are being met. These audits must include checks
to ensure that the records requesting access to material to be read, looked at, or listened
to have been correctly compiled, and specifically, that the material requested falls within
matters certified by the Secretary of State. Any mistakes or procedural deficiencies
should be notified to management, and remedial measures undertaken. Any serious
deficiencies should be brought to the attention of senior management and any breaches
of safeguards (as noted in paragraph 7.1) must be reported to the Interception of
Communications Commissioner. All intelligence reports generated by the authorised
persons must be subject to a quality control audit.

7.18

In order to meet the requirements of RIPA described in paragraph 6.3 above, where a
selection factor refers to an individual known to be for the time being in the British
Islands, and has as its purpose or one of its purposes, the identification of material
contained in communications sent by or intended for him or her, a submission must be
made to the Secretary of State, or to a senior official in an urgent case, giving an
explanation of why an amendment to the section 8(4) certificate in relation to such an
individual is necessary for a purpose falling within section 5(3) of RIPA and is
proportionate in relation to any conduct authorised under section 8(4) of RIPA.

7.19

The Secretary of State must ensure that the safeguards are in force before any
interception under section 8(4) warrants can begin. The Interception of Communications
Commissioner is under a duty to review the adequacy of the safeguards.

18

Any such record should be made available to the Commissioner on request for purposes of oversight.

28

8. Disclosure to ensure fairness in criminal

proceedings
8.1

Section 15(3) of RIPA contains the general rule that intercepted material must be
destroyed as soon as its retention is no longer necessary for a purpose authorised under
RIPA. Section 15(4) specifies the authorised purposes for which retention is necessary.

8.2

This part of the code applies to the handling of intercepted material in the context of
criminal proceedings where the material has been retained for one of the purposes
authorised in section 15(4) of RIPA. For those who would ordinarily have had
responsibility under the Criminal Procedure and Investigations Act 1996 to provide
disclosure in criminal proceedings, this includes those rare situations where destruction
of intercepted material has not taken place in accordance with section 15(3) and where
that material is still in existence after the commencement of a criminal prosecution. (In
these circumstances, retention will have been considered necessary to ensure that a
person conducting a criminal prosecution has the information he or she needs to
discharge his or her duty of ensuring its fairness (section 15(4)(d)).

Exclusion of matters from legal proceedings

8.3

The general rule is that neither the possibility of interception, nor intercepted material
itself, plays any part in legal proceedings. This rule is set out in section 17 of RIPA, which
excludes evidence, questioning, assertion or disclosure in legal proceedings likely to
reveal the existence (or the absence) of a warrant issued under this Act (or the
Interception of Communications Act 1985). This rule means that the intercepted material
cannot be used either by the prosecution or the defence. This preserves equality of
arms which is a requirement under Article 6 of the ECHR.

8.4

Section 18 contains a number of tightly-drawn exceptions to this rule. This part of the
code deals only with the exception in subsections (7) to (11).

Disclosure to a prosecutor
8.5

Section 18(7)(a) provides that intercepted material obtained by means of a warrant and
which continues to be available may, for a strictly limited purpose, be disclosed to a
person conducting a criminal prosecution.

8.6

This may only be done for the purpose of enabling the prosecutor to determine what is
required of him or her by his or her duty to secure the fairness of the prosecution. The
prosecutor may not use intercepted material to which he or she is given access under
section 18(7)(a) to mount a cross-examination, or to do anything other than ensure the
fairness of the proceedings.

8.7

The exception does not mean that intercepted material should be retained against a
remote possibility that it might be relevant to future proceedings. The normal expectation
is still for the intercepted material to be destroyed in accordance with the general
safeguards provided by section 15. The exceptions only come into play if such material
has, in fact, been retained for an authorised purpose. Because the authorised purpose
given in section 5(3)(b) (for the purpose of preventing or detecting serious crime) does
not extend to gathering evidence for the purpose of a prosecution, material intercepted
for this purpose may not have survived to the prosecution stage, as it will have been
29

destroyed in accordance with the section 15(3) safeguards. There is, in these
circumstances, no need to consider disclosure to a prosecutor if, in fact, no intercepted
material remains in existence.
8.8

Section 18(7)(a) recognises the duty on prosecutors, acknowledged by common law, to

review all available material to make sure that the prosecution is not proceeding unfairly.
Available material will only ever include intercepted material at this stage if the
conscious decision has been made to retain it for an authorised purpose.

8.9

If intercepted material does continue to be available at the prosecution stage, once this
information has come to the attention of its holder, the prosecutor should be informed
that a warrant has been issued under section 5 and that material of possible relevance to
the case has been intercepted.

8.10

Having had access to the material, the prosecutor may conclude that the material affects
the fairness of the proceedings. In these circumstances, he or she will decide how the
prosecution, if it proceeds, should be presented.

Disclosure to a judge
8.11

Section 18(7)(b) recognises that there may be cases where the prosecutor, having seen
intercepted material under subsection (7)(a), will need to consult the trial Judge.
Accordingly, it provides for the Judge to be given access to intercepted material, where
there are exceptional circumstances making that disclosure essential in the interests of
justice.

8.12

This access will be achieved by the prosecutor inviting the judge to make an order for
disclosure to him or her alone, under this subsection. This is an exceptional procedure;
normally, the prosecutors functions under subsection (7)(a) will not fall to be reviewed by
the judge. To comply with section 17(l), any consideration given to, or exercise of, this
power must be carried out without notice to the defence. The purpose of this power is to
ensure that the trial is conducted fairly.

8.13

The judge may, having considered the intercepted material disclosed to him or her, direct
the prosecution to make an admission of fact. The admission will be abstracted from the
interception; but, in accordance with the requirements of section 17(l), it must not reveal
the fact of interception. This is likely to be a very unusual step. RIPA only allows it where
the judge considers it essential in the interests of justice.

8.14

Nothing in these provisions allows intercepted material, or the fact of interception, to be

disclosed to the defence.

30

9. Interception without a warrant

9.1

Lawful interception can only take place if the conduct has lawful authority (as set out in
section 1(5) of RIPA). Section 1(5) of RIPA permits interception without a warrant in the
following circumstances:
where it is authorised by or under sections 3 or 4 of RIPA (see below); or
where it takes place, in relation to any stored communication, under some other
statutory power being exercised for the purpose of obtaining information or of taking
possession of any document or other property. This includes, for example, the obtaining
of a production order under Schedule 1 to the Police and Criminal Evidence Act 1984 for
stored communications to be produced.

9.2

Interception in accordance with a warrant under section 5 of RIPA is dealt with under
chapters 3, 4, 5 and 6 of this code. Interception without lawful authority may be a
criminal offence (see paragraph 2.2 of this code).

9.3

There is no prohibition in RIPA on the evidential use of any material that is obtained as a
result of lawful interception which takes place without a warrant, pursuant to sections 3 or
4 of RIPA, or pursuant to some other statutory power. The matter may still, however, be
regulated by the exclusionary rules of evidence to be found in the common law, section
78 of the Police and Criminal Evidence Act 1984, and/or pursuant to the Human Rights
Act 1998.

Interception with the consent of both parties

9.4

Section 3(1) of RIPA authorises the interception of a communication if both the person
sending the communication and the intended recipient(s) have given their consent.

Interception with the consent of one party

9.5

Section 3(2) of RIPA authorises the interception of a communication if either the sender
or intended recipient of the communication has consented to its interception, and
directed surveillance by means of that interception has been authorised under Part II of
RIPA or authorised under The Regulation of Investigatory Powers (Scotland) Act 2000
(RIPSA). Further details can be found in chapter 2 of the Covert Surveillance and
Property Interference Code of Practice and in chapter 3 of the Covert Human Intelligence
Sources Code of Practice19, or their RIPSA equivalents.

Interception for the purposes of a communication service provider

9.6

19

Section 3(3) of RIPA permits a communication service provider, or a person acting upon
their behalf, to carry out interception for purposes connected with the operation of that
service, or for purposes connected with the enforcement of any enactment relating to the
use of the communication service.

http://www.gov.uk/government/publications/covert-surveillance-and-covert-human-intelligence-sources-codes-of-practice

31

Lawful business practice

9.7

Section 4(2) of RIPA enables the Secretary of State to make regulations setting out those
circumstances where it is lawful to intercept communications for the purpose of carrying
on a business. These regulations apply equally to public authorities. These Lawful
Business Practice Regulations can be found on the legislation.gov.uk website:
http://www.legislation.gov.uk/uksi/2000/2699

32

10. Oversight
10.1

RIPA provides for an Interception of Communications Commissioner, whose remit is to

provide independent oversight of the use of the powers contained within the warranted
interception regime under Chapter I of Part I of RIPA.

10.2

The Commissioner carries out biannual inspections of each of the nine interception
agencies. The primary objectives of the inspections are to ensure that the Commissioner
has the information he or she requires to carry out his or her functions under section 57
of RIPA and produce his or her report under section 58 of RIPA. This may include
inspection or consideration of:
The systems in place for the interception of communications;
The relevant records kept by the intercepting agency;
The lawfulness of the interception carried out; and
Any errors and the systems designed to prevent such errors.

10.3

Any person who exercises the powers in RIPA Part 1 Chapter 1 must report to the
Commissioner any action that is believed to be contrary to the provisions of RIPA or any
inadequate discharge of section 15 safeguards. He or she must also comply with any
request made by the Commissioner to provide any such information as the
Commissioner requires for the purpose of enabling him or her to discharge his or her
functions.

33

11. Complaints
11.1

RIPA establishes 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
determine complaints against public authority use of covert powers and human rights
claims against the intelligence agencies. It may decide any case within its jurisdiction.

11.2

This code does not cover the exercise of the Tribunals functions. Details of the relevant
complaints procedure are available on the IPT website at: http://www.ipt-uk.com or can
be obtained from the following address:
The Investigatory Powers Tribunal
PO Box 33220
London
SWIH 9ZQ
0207 035 3711

34

Equipment Interference
Code of Practice
Pursuant to section 71 of the Regulation of Investigatory Powers Act 2000

Draft for public consultation

February 2015

CONTENTS
CONTENTS ................................................................................................................................. 2
1.

Introduction .......................................................................................................................... 4
Definitions ....................................................................................................................... 4
Background ..................................................................................................................... 4
Equipment interference to which this code applies .......................................................... 5
Effect of the code ............................................................................................................ 5
Basis for lawful equipment interference activity ............................................................... 5
Application of section 5 of the 1994 Act .......................................................................... 6

2.

General rules on warrants ................................................................................................... 8

Necessity and proportionality .......................................................................................... 8
Collateral intrusion........................................................................................................... 9
Reviewing warrants ......................................................................................................... 9
General best practices .................................................................................................... 9

3.

Legally privileged and confidential information .................................................................. 11

Overview ....................................................................................................................... 11
Information subject to legal privilege: introduction ......................................................... 11
Tests to be applied when authorising equipment interference likely or intended to result
in the acquisition of knowledge of matters subject to legal privilege.............................. 12
The use and handling of matters subject to legal privilege ............................................ 12
Confidential information ................................................................................................. 14

4.

Procedures for authorising equipment interference under section 5 .................................. 16

General basis for lawful activity ..................................................................................... 16
Application for an equipment interference warrant ........................................................ 16
Issuing of section 5 warrants ......................................................................................... 17
Urgent authorisation of a section 5 warrant ................................................................... 17
Renewals of warrants .................................................................................................... 18
Cancellations of warrants .............................................................................................. 18
Retrieval of equipment .................................................................................................. 18

5.

Keeping of records ............................................................................................................ 19

Centrally retrievable records of warrants ....................................................................... 19

6.

Handling of information and safeguards ............................................................................ 20

Overview ....................................................................................................................... 20
Use of information as evidence ..................................................................................... 20
Handling information obtained by equipment interference ............................................ 20
Dissemination of information ......................................................................................... 21
Copying ......................................................................................................................... 21
Storage .......................................................................................................................... 21
Destruction .................................................................................................................... 21
Personnel security ......................................................................................................... 21

7.

Application of the code to equipment interference pursuant to section 7 of the 1994 Act .. 23
Application of the code to other equipment interference ............................................... 23
General basis for lawful activity ..................................................................................... 23
Authorisations for equipment interference under section 7 ........................................... 24
Urgent authorisation of a section 7 authorisation .......................................................... 24
Other authorisations and internal approvals .................................................................. 24
Renewals of authorisations ........................................................................................... 25
Cancellations of authorisations...................................................................................... 25
2

8.

Oversight by Intelligence Services Commissioner ............................................................. 26

9.

Complaints......................................................................................................................... 27

10. Glossary ............................................................................................................................... 28

11. Annex A ............................................................................................................................... 30

1. Introduction
Definitions
In this code:
1989 Act means the Security Service Act 1989;
1994 Act means the Intelligence Services Act 1994;
1998 Act means the Human Rights Act 1998;
2000 Act means the Regulation of Investigatory Powers Act 2000;
terms in italics (at first use) are defined in the Glossary at the end of this code.

Background
1.1

This code of practice provides guidance on the use by the Intelligence Services of
section 5 of the Intelligence Services Act 1994 to authorise equipment interference to
which the code applies. It provides guidance on the procedures that must be followed
before equipment interference can take place under that provision, and on the
processing, retention, destruction and disclosure of any information obtained by means
of the interference.

1.2

This code is issued pursuant to section 71 of the 2000 Act, which provides that the
Secretary of State shall issue one or more codes of practice in relation to the powers and
duties in section 5 of the 1994 Act. To the extent that the guidance provided by this code
with respect to equipment interference under section 5 of the 1994 Act overlaps with the
guidance provided by the Covert Surveillance and Property Interference Revised Code of
Practice issued in 2014, this code takes precedence. The Intelligence Services must
continue to comply with the 2014 Code in all other respects.

1.3

The heads of the Intelligence Services are also under a duty to ensure that arrangements
are in force to secure: (i) that no information is obtained by the Intelligence Services
except so far as necessary for the proper discharge of their functions1; and (ii) that no
information is disclosed except so far as is necessary for those functions, for the purpose
of any criminal proceedings, and, in the case of the Secret Intelligence Service (SIS)
and the Security Service, for the other purposes specified2. The arrangements must
include provision with respect to the disclosure of information obtained by virtue of
sections 5 and 7, and any information so obtained must be subject to the arrangements 3.

1.4

There is no power for the Secretary of State to issue codes of practice in relation to the
powers and duties in section 7 of the 1994 Act. However, SIS and the Government
Communications Headquarters (GCHQ) must as a matter of policy (and without
prejudice as to whether section 6 of the 1998 Act applies) comply with the provisions of
this code in any case where equipment interference is to be, or has been, authorised
pursuant to section 7 of the 1994 Act in relation to equipment located outside the British
Islands4.

See paragraph 1.9.

See section 2(2)(a) of the 1989 Act and sections 2(2)(a) and 4(2)(a) of the 1994 Act.
3
See sections 5(2)(c) and 7(3)(c) of the 1994 Act.
4
Applications for authorisations under section 7 may only be made by SIS and GCHQ.
2

1.5

This code is publicly available and should be readily accessible by members of any of the
Intelligence Services seeking to use the 1994 Act to authorise equipment interference to
which this code applies.

Equipment interference to which this code applies

1.6

This code applies to (i) any interference5 (whether remotely or otherwise) by the
Intelligence Services, or persons acting on their behalf or in their support, with
equipment6 producing electromagnetic, acoustic and other emissions, and (ii) information
derived from any such interference, which is to be authorised under section 5 of the 1994
Act, in order to do any or all of the following:
a)
b)
c)
d)

obtain information from the equipment in pursuit of intelligence requirements;

obtain information concerning the ownership, nature and use of the equipment in
pursuit of intelligence requirements;
locate and examine, remove, modify or substitute equipment hardware or software
which is capable of yielding information of the type described in a) and b);
enable and facilitate surveillance activity by means of the equipment.

Information may include communications content, and communications data as defined

in section 21 of the 2000 Act.
1.7

The section 5 warrant process must be complied with in order properly and effectively to
deal with any risk of civil or criminal liability arising from the interferences with equipment
specified at sub-paragraphs (a) to (d) of paragraph 1.6 above. A section 5 warrant
provides the Intelligence Services with specific legal authorisation removing criminal and
civil liability arising from any such interferences. For the purposes of this code, any
activity by the Intelligence Services or persons acting on their behalf or in their support
falling within paragraph 1.6 which is (or is to be) authorised under section 5 of the 1994
Act will be referred to as equipment interference.

Effect of the code

1.8

The 2000 Act provides that all codes of practice in force under section 71 of the 2000 Act
are admissible as evidence in criminal and civil proceedings. If any provision of this code
appears relevant to any court or tribunal considering any such proceedings, or to the
Investigatory Powers Tribunal established under the 2000 Act, or to one of the
Commissioners carrying out any of their functions under the 2000 Act, it must be taken
into account. The Intelligence Services may also be required to justify, with regard to this
code, the use of section 5 warrants in general or the failure to apply for or use such
warrants where appropriate.

Basis for lawful equipment interference activity

1.9

Equipment interference is conducted in accordance with the statutory functions of each

Intelligence Service:
In the case of the Security Service, the 1989 Act provides that the Services functions
are the protection of national security, the safeguarding of the economic well-being of

Interference for these purposes excludes any interference which takes place with the consent of a person
having the right to control the operation or the use of the equipment.
6
Equipment may include, but is not limited to, computers, servers, routers, laptops, mobile phones and other
devices.
5

the United Kingdom against threats posed by the actions or intentions of persons
outside the British Islands and the provision of support to the police and other law
enforcement authorities in the prevention and detection of serious crime;
For SIS, the 1994 Act provides that its functions are to obtain and provide information
relating to the actions or intentions of persons outside the British Islands and to
perform other tasks relating to the actions or intentions of such persons in the
interests of national security, with particular reference to the defence and foreign
policies of Her Majestys Government in the United Kingdom, or in the interests of the
economic well-being of the United Kingdom or in support of the prevention or
detection of serious crime;
In the case of GCHQ, the 1994 Act provides, as relevant, that its functions are to
monitor or interfere with electromagnetic, acoustic and other emissions and any
equipment producing such emissions and to obtain and provide information derived
from or related to such emissions or equipment and from encrypted material in the
interests of national security, with particular reference to the defence and foreign
policies of Her Majestys Government in the United Kingdom, or in the interests of the
economic well-being of the United Kingdom in relation to the actions or intentions of
persons outside the British Islands, or in support of the prevention or detection of
serious crime.
1.10

The Human Rights Act 1998 gives effect in UK law to the rights set out in the European
Convention on Human Rights (ECHR). Some of these rights are absolute, such as the
prohibition on torture, while others are qualified, which means that it is permissible for
public authorities to interfere with those rights if certain conditions are satisfied.

1.11

Amongst the qualified rights is a persons right to respect for their private and family life,
home and correspondence, as provided for by Article 8 of the ECHR. It is Article 8 that is
most likely to be engaged when the Intelligence Services seek to obtain personal
information about a person by means of equipment interference. Such conduct may also
engage Article 1 of the First Protocol (right to peaceful enjoyment of possessions7).

1.12

By section 6(1) of the 1998 Act, it is unlawful for a public authority to act in a way which is
incompatible with a Convention right. Each of the Intelligence Services is a public
authority for this purpose. When undertaking any activity that interferes with ECHR rights,
the Intelligence Services must therefore (among other things) act proportionately.
Section 5 of the 1994 Act provides a statutory framework under which equipment
interference can be authorised and conducted compatibly with ECHR rights.

1.13

So far as any information obtained by means of an equipment interference warrant is

concerned, the heads of each of the Intelligence Services must also ensure that there
are satisfactory arrangements in force under the 1994 Act or the 1989 Act in respect of
the disclosure of that information, and that any information obtained under the warrant
will be subject to those arrangements. Compliance with these arrangements will ensure
that the Intelligence Services remain within the law and properly discharge their
functions.

Application of section 5 of the 1994 Act

1.14

The 1994 Act applies to each of the Intelligence Services in a slightly different way:

For example, hardware or software.

6

SIS and GCHQ may not be issued with a section 5 warrant for action in support of the
prevention or detection of serious crime which relates to equipment in the British
Islands8;
The Security Service may only be issued with a section 5 warrant for action in support
of the prevention or detection of serious crime which relates to equipment in the
British Islands if certain conditions are satisfied9.
1.15

8
9

The procedures for authorising equipment interference under section 5 (and any
associated interferences) are explained further in chapter 4.

See section 5(3) of the 1994 Act.

See section 5(3B) of the 1994 Act.
7

2. General rules on warrants

Overview
2.1

A warrant under section 5 of the 1994 Act will, providing the statutory tests are met,
remove criminal and civil liability arising from equipment interference operations.

2.2

Responsibility for issuing warrants under section 5 rests with the Secretary of State.
Applications for warrants may be made by any of the Intelligence Services.

2.3

In any case where an equipment interference operation also enables or facilitates

separate covert surveillance likely to result in the obtaining of private information about a
person, a directed or intrusive surveillance authorisation may be required under Part 2 of
the 2000 Act (see the Covert Surveillance and Property Interference Code of Practice).

Necessity and proportionality

2.4

The 1994 Act provides that the Secretary of State issuing the warrant must believe that
the activities to be authorised are necessary for one or more statutory purposes10.

2.5

If the activities are deemed necessary for any of the purposes specified, the Secretary of
State must also believe that they are proportionate to what is sought to be achieved by
carrying them out.

2.6

Any assessment of proportionality involves balancing the seriousness of the intrusion into
the privacy or property of the subject of the operation (or any other person who may be
affected) against the need for the activity in investigative, operational or capability terms.
The warrant will not be proportionate if it is excessive in the overall circumstances of the
case. Each action authorised should bring an expected benefit to the investigation or
operation and should not be disproportionate or arbitrary. The fact that there is a
potential threat to national security (for example) may not alone render the most intrusive
actions proportionate. No interference should be considered proportionate if the
information which is sought could reasonably be obtained by other less intrusive means.

2.7

The following elements of proportionality should therefore be considered:

balancing the size and scope of the proposed interference against what is sought to
be achieved;
explaining how and why the methods to be adopted will cause the least possible
intrusion on the subject and others;
considering whether the activity is an appropriate use of the legislation and a
reasonable way, having considered all reasonable alternatives, of obtaining the
necessary result;
evidencing, as far as reasonably practicable, what other methods have been
considered and why they were not implemented.

2.8

10

It is important that all those involved in undertaking equipment interference operations

under the 1994 Act are fully aware of the extent and limits of the action that may be taken
under the warrant in question.

These statutory purposes are specified in section 5 of the 1994 Act. They are detailed in Chapter 4.
8

Collateral intrusion
2.9

Any application for a section 5 warrant should also take into account the risk of obtaining
private information about persons who are not subjects of the equipment interference
activity (collateral intrusion).

2.10

Measures should be taken, wherever practicable, to avoid or minimise unnecessary

intrusion into the privacy of those who are not the intended subjects of the equipment
interference activity. Where such collateral intrusion is unavoidable, the activities may still
be authorised, provided this intrusion is considered proportionate to what is sought to be
achieved.

2.11

All applications should therefore include an assessment of the risk of collateral intrusion
and details of any measures taken to limit this, to enable the Secretary of State fully to
consider the proportionality of the proposed actions.

2.12

Where it is proposed to conduct equipment interference activity specifically against

individuals who are not intelligence targets in their own right, interference with the
equipment of such individuals should not be considered as collateral intrusion but rather
as intended intrusion. Any such equipment interference activity should be carefully
considered against the necessity and proportionality criteria as described above.

Reviewing warrants
2.13

Regular reviews of all warrants should be undertaken to assess the need for the
equipment interference activity to continue. The results of a review should be retained for
at least three years (see Chapter 5). Particular attention should be given to the need to
review warrants frequently where the equipment interference involves a high level of
intrusion into private life or significant collateral intrusion, or confidential information is
likely to be obtained.

2.14

In each case, unless specified by the Secretary of State, the frequency of reviews should
be determined by the member of the Intelligence Services who made the application.
This should be as frequently as is considered necessary and practicable.

2.15

In the event that there are any significant and substantive changes to the nature of the
interference and/or the identity of the equipment during the currency of the warrant, the
Intelligence Services should consider whether it is necessary to apply for a fresh section
5 warrant.

General best practices

2.16

The following guidelines should be considered as best working practices by the

Intelligence Services with regard to all applications for warrants covered by this code:
applications should avoid any repetition of information;
information contained in applications should be limited to that required by the 1994
Act;
where warrants are issued under urgency procedures (see Chapter 4), a record
detailing the actions authorised and the reasons why the urgency procedures were
used should be recorded by the applicant and authorising officer as a priority. There
is then no requirement subsequently to submit a full written application;
9

where it is foreseen that other agencies will be involved in carrying out the operation,
these agencies should be detailed in the application; and
warrants should not generally be sought for activities already authorised following an
application by the same or a different public authority.
2.17

Furthermore, it is considered good practice that within each of the Intelligence Services,
a designated senior official should be responsible for:
the integrity of the process in place within the Intelligence Service to authorise
equipment interference;
compliance with the 1994 Act and this code;
engagement with the Intelligence Services Commissioner when he conducts his
inspections; and
where necessary, overseeing the implementation of any post inspection action plans
recommended or approved by the Commissioner.

10

3. Legally privileged and confidential

information
Overview
3.1

The 1994 Act does not provide any special protection for 'confidential information'.
Nevertheless, particular consideration should be given in cases where the subject of the
operation might reasonably assume a high degree of privacy, or where confidential
information is involved. Confidential information includes communications subject to legal
privilege, communications between a Member of Parliament and another person on
constituency business, confidential personal information, or confidential journalistic
material. So, for example, particular consideration should be given where, through
equipment interference comprising the obtaining of information, it is likely that knowledge
will be acquired of communications between a minister of religion and an individual
relating to the latter's spiritual welfare, or between a Member of Parliament and a
constituent relating to constituency business, or wherever matters of medical or
journalistic confidentiality or legal privilege may be involved. References to a Member of
Parliament include references to a Member of the UK Parliament, the European
Parliament, the Scottish Parliament, the Welsh Assembly and the Northern Ireland
Assembly.

Information subject to legal privilege: introduction

3.2

Section 98 of the Police Act 1997 describes those matters that are subject to legal
privilege in England and Wales. In relation to Scotland, those matters subject to legal
privilege contained in section 33 of the Criminal Law (Consolidation) (Scotland) Act 1995
should be adopted. With regard to Northern Ireland, Article 12 of the Police and Criminal
Evidence (Northern Ireland) Order 1989 should be referred to.

3.3

Legal privilege does not apply to communications or items held with the intention of
furthering a criminal purpose (whether the lawyer is acting unwittingly or culpably).
Legally privileged communications or items will lose their protection if there are grounds
to believe, for example, that the professional legal adviser is intending to hold or use the
information for a criminal purpose. But privilege is not lost if a professional legal adviser
is properly advising a person who is suspected of having committed a criminal offence.
The concept of legal privilege applies to the provision of professional legal advice by any
individual, agency or organisation qualified to do so.

3.4

Although the 1994 Act does not provide any special protection for legally privileged
material, the acquisition of knowledge of matters subject to legal privilege is particularly
sensitive and may give rise to issues under Article 6 (right to a fair trial) of the ECHR as
well as engaging Article 8. The acquisition of knowledge of matters subject to legal
privilege is therefore subject to additional safeguards under this code.

11

Tests to be applied when authorising equipment interference likely

or intended to result in the acquisition of knowledge of matters
subject to legal privilege
3.5

All applications for equipment interference that may result in the acquisition of knowledge
of matters subject to legal privilege should state whether the interference is intended to
obtain knowledge of matters subject to legal privilege (as described in paragraph 3.2).

3.6

If the equipment interference is not intended to result in the acquisition of knowledge of

matters subject to legal privilege, but it is likely that such knowledge will nevertheless be
acquired during the operation, the application should identify the steps which will be
taken to mitigate the risk of acquiring it. If the risk cannot be removed entirely, the
application should explain what steps will be taken to ensure that any knowledge of
matters subject to legal privilege which is obtained is not used in law enforcement
investigations or criminal prosecutions.

3.7

Where equipment interference is likely or intended to result in the acquisition of

knowledge of matters subject to legal privilege, a warrant will only be issued if the
Secretary of State is satisfied that there are exceptional and compelling circumstances
that make the warrant necessary:
Where the equipment interference is not intended to result in the acquisition of
knowledge of matters subject to legal privilege, such exceptional and compelling
circumstances may arise in the interests of national security or the economic wellbeing of the UK, or for the purpose of preventing or detecting serious crime;
Where the equipment interference is intended to result in the acquisition of knowledge
of matters subject to legal privilege, such circumstances will arise only in a very
restricted range of cases, such as where there is a threat to life or limb, or to national
security, and the equipment interference is reasonably regarded as likely to yield
intelligence necessary to counter the threat.

3.8

Further, in considering any equipment interference likely or intended to result in the

acquisition of knowledge of matters subject to legal privilege, the Secretary of State must
be satisfied that the proposed equipment interference is proportionate to what is sought
to be achieved.

The use and handling of matters subject to legal privilege

3.9

Matters subject to legal privilege are particularly sensitive and equipment interference
which acquires such material may give rise to issues under Article 6 of the ECHR as well
as engaging Article 8.

3.10

Where the Intelligence Services deliberately acquire knowledge of matters subject to

legal privilege, they may use that knowledge to counter the threat which led them to
acquire it, but it will not be admissible in court. The Intelligence Services should ensure
that knowledge of matters subject to legal privilege, whether or not it is acquired
deliberately, is kept separate from law enforcement investigations or criminal
prosecutions.

3.11

In cases likely to result in the acquisition of knowledge of matters subject to legal

privilege, the Secretary of State may require regular reporting so as to be able to decide
whether the warrant should continue to have effect.

12

3.12

Where there is a renewal application in respect of a warrant which has resulted in the
obtaining of legally privileged material that fact ought to be highlighted in the renewal
application.

3.13

A substantial proportion of the communications between a lawyer and his client(s) may
be subject to legal privilege. Therefore, in any case where a lawyer is the subject of an
investigation or operation, the Secretary of State should consider whether the special
safeguards outlined in this chapter apply. The case should also be notified to the
Intelligence Services Commissioner during his next inspection and any legally privileged
material which has been retained from any such investigation or operation should be
made available to the Commissioner on request.

3.14

Caseworkers who examine information obtained by equipment interference should be

alert to any material which may be subject to legal privilege. Where there is doubt as to
whether the information is subject to legal privilege, or as to the handling and
dissemination of such information, advice should be sought from a legal adviser within
the relevant Intelligence Service. Similar advice should also be sought where there is
doubt over whether information is not subject to legal privilege due to the "in furtherance
of a criminal purpose" exception.

3.15

Other than in exceptional circumstances, no information subject to legal privilege must be

acted on or further disseminated unless a legal adviser has been consulted on the
lawfulness (including the necessity and proportionality) of such action or dissemination.

3.16

The retention of legally privileged material, or its dissemination to an outside body,

should be accompanied by a clear warning that it is subject to legal privilege. It should be
safeguarded by taking reasonable steps to remove the risk of it becoming available, or its
contents becoming known, to any person whose possession of it might prejudice any
criminal or civil proceedings to which the information relates. Neither the Crown
Prosecution Service lawyer nor any other prosecuting authority lawyer with conduct of a
prosecution should have sight of any legally privileged material, held by the relevant
Intelligence Service, with any possible connection to the proceedings. In respect of civil
proceedings, there can be no circumstances under which it is proper for any of the
Intelligence Services to seek to rely on legally privileged material in order to gain a
litigation advantage over another party in legal proceedings.

3.17

In order to safeguard against any risk of prejudice or accusation of abuse of process, the
Intelligence Services must also take all reasonable steps to ensure that (as far as
practicable) lawyers or policy officials with conduct of legal proceedings should not see
legally privileged material relating to those proceedings (whether the privilege is that of
the other party to those proceedings or that of a third party). If such circumstances do
arise, the relevant Intelligence Service must seek independent advice from Counsel and,
if there is assessed to be a risk that such material could yield a litigation advantage, the
direction of the Court.

3.18

In those cases where legally privileged material has been acquired and retained, the
matter should be reported to the Intelligence Services Commissioner as soon as
reasonably practicable, as agreed with the Commissioner. Any material that is still being
retained should be made available to him or her if requested, including detail of whether
that material has been disseminated.

3.19

Material which has been identified as legally privileged should be retained only where it is
necessary and proportionate to do so in accordance with the statutory functions of each
of the Intelligence Services or where otherwise required by law. It must be securely
13

destroyed when its retention is no longer needed for those purposes. If such information
is retained, it must be reviewed at reasonable intervals to confirm that the justification for
its retention is still valid.

Confidential information
3.20

Particular consideration must also be given to cases that involve confidential personal
information, confidential constituent information and confidential journalistic material.

3.21

Confidential personal information is information held in confidence concerning an

individual (whether living or dead) who can be identified from it, and the material in
question relates to his physical or mental health or to spiritual counselling 11. Such
information can include both oral and written communications. Such information as
described above is held in confidence if it is held subject to an express or implied
undertaking to hold it in confidence or is subject to a restriction on disclosure or an
obligation of confidentiality contained in existing legislation. For example, confidential
personal information might include consultations between a health professional and a
patient, or information from a patient's medical records.

3.22

Confidential constituent information is information relating to communications between a

Member of Parliament and a constituent in respect of constituency business. Again, such
information is held in confidence if it is held subject to an express or implied undertaking
to hold it in confidence or it is subject to a restriction on disclosure or an obligation of
confidentiality contained in existing legislation.

3.23

Confidential journalistic material includes material acquired or created for the purposes of
journalism and held subject to an undertaking to hold it in confidence, as well as
communications resulting in information being acquired for the purposes of journalism
and held subject to such an undertaking.

3.24

Where the intention is to acquire confidential information, the reasons should be clearly
documented and the specific necessity and proportionality of doing so should be carefully
considered. If the acquisition of confidential information is likely but not intended, any
possible mitigation steps should be considered and, if none is available, consideration
should be given to adopting special handling arrangements within the relevant
Intelligence Service.

3.25

Material which has been identified as confidential information should be retained only
where it is necessary and proportionate to do so in accordance with the statutory
functions of each of the Intelligence Services or where otherwise required by law. It must
be securely destroyed when its retention is no longer needed for those purposes. If such
information is retained, it must be reviewed at reasonable intervals to confirm that the
justification for its retention is still valid

3.26

Where confidential information is retained or disseminated to an outside body,

reasonable steps should be taken to mark the information as confidential. Where there is
any doubt as to the handling and dissemination of confidential information, advice should
be sought from a legal adviser within the relevant Intelligence Service before any further
dissemination of the material takes place.

11

Spiritual counselling means conversations between an individual and a Minister of Religion acting in his or her
official capacity, and where the individual being counselled is seeking or the Minister is imparting forgiveness,
absolution or the resolution of conscience with the authority of the Divine Beings(s) of their faith.
14

3.27

Any case where confidential information is retained should be reported to the Intelligence
Services Commissioner as soon as reasonably practicable, as agreed with the
Commissioner and any material which has been retained should be made available to
the Commissioner on request.

15

4. Procedures for authorising equipment

interference under section 5
General basis for lawful activity
4.1

Subject to paragraph 4.4, a warrant under section 5 of the 1994 Act should be sought
wherever members of the Intelligence Services, or persons acting on their behalf or in
their support, conduct equipment interference in relation to equipment located in the
British Islands that would be otherwise unlawful.

4.2

If the equipment is located outside the British Islands, and the interference would be
otherwise unlawful, the Security Service should seek a warrant under section 5 of the
1994 Act. In the case of SIS and GCHQ, an authorisation under section 7 may be
obtained instead of a warrant under section 512 (see chapter 8).

4.3

An application for a section 5 warrant must usually13 be made by a member of the

Security Service, SIS or GCHQ for the taking of action in relation to that Intelligence
Service. In addition, the Security Service may make an application for a warrant to act
on behalf of SIS and GCHQ.

4.4

SIS and GCHQ may not be issued with a warrant for action in support of the prevention
or detection of serious crime which relates to equipment in the British Islands. The
Security Service may only be issued with a warrant for action in support of the prevention
or detection of serious crime which relates to equipment in the British Islands if it
authorises the taking of action in relation to conduct which would constitute one or more
offences and:
It involves the use of violence, results in substantial financial gain or is conduct by a
large number of persons in pursuit of a common purpose; or
a person aged twenty-one or over with no previous convictions could reasonably be
expected to be sentenced to three years imprisonment or more.

4.5

In some cases an equipment interference operation may also enable or facilitate

separate covert surveillance likely to result in the obtaining of private information about a
person. A directed or intrusive surveillance authorisation may need to be obtained under
Part 2 of the 2000 Act in such cases (see the Covert Surveillance and Property
Interference Revised Code of Practice). Operations involving covert surveillance and
equipment interference may be authorised as a combined warrant, although the criteria
for authorisation of each activity must be considered separately.

Application for an equipment interference warrant

4.6

An application for the issue or renewal of a section 5 warrant is made to the Secretary of
State. Each application should contain the following information:

12

This includes cases where the act is done in the British Islands, but is intended to be done in relation to
apparatus that is or is believed to be outside the British Islands, or in relation to anything appearing to originate
from such apparatus: section 7(9). See also section 7(10) to (12).
13
Where two Intelligence Services are conducting equipment interference as part of a joint operation only one
authorisation is required.
16

the identity or identities, where known, of those who possess or use the equipment
that is to be subject to the interference;
sufficient information to identify the equipment which will be affected by the
interference;
the nature and extent of the proposed interference, including any interference with
information derived from or related to the equipment;
what the operation is expected to deliver and why it could not be obtained by other
less intrusive means;
details of any collateral intrusion, including the identity of individuals and/or categories
of people, where known, who are likely to be affected.
whether confidential or legally privileged material may be obtained. If the equipment
interference is not intended to result in the acquisition of knowledge of matters subject
to legal privilege or confidential personal information, but it is likely that such
knowledge will nevertheless be acquired during the operation, the application should
identify all steps which will be taken to mitigate the risk of acquiring it;
details of any offence suspected or committed where relevant;
how the authorisation criteria (as set out at paragraph 4.7 below) are met;
what measures will be put in place to ensure proportionality is maintained (e.g.
filtering, disregarding personal information);
where an application is urgent, the supporting justification;
any action which may be necessary to install, modify or remove software on the
equipment;
in case of a renewal, the results obtained so far, or a full explanation of the failure to
obtain any results.

Issuing of section 5 warrants

4.7

Before issuing a warrant, the Secretary of State must:

think it necessary for the action to be taken for the purpose of assisting the relevant
Intelligence Service in carrying out its functions;
be satisfied that the taking of the action is proportionate to what the action seeks to
achieve;
take into account, in deciding whether a warrant is necessary and proportionate,
whether the information which it is thought necessary to obtain by the conduct
authorised by the warrant could reasonably be obtained by other means; and
be satisfied that there are satisfactory arrangements in force under the 1994 Act or
the 1989 Act in respect of disclosure of any information obtained by means of the
warrant, and that information obtained will be subject to those arrangements.

Urgent authorisation of a section 5 warrant

4.8

Section 6 of the 1994 Act makes provision for cases in which a warrant is required
urgently, yet the Secretary of State is not available to issue the warrant. In these cases
the Secretary of State will still personally authorise the equipment interference but the
warrant is signed by a senior official, following discussion of the case between the senior
official and the Secretary of State.

4.9

The 1994 Act restricts issue of warrants in this way to urgent cases where the Secretary
of State has expressly authorised the issue of the warrant, and requires the warrant to
contain a statement to that effect.

17

Renewals of warrants
4.10

A warrant, unless renewed, ceases to have effect at the end of the period of six months
beginning with the day on which it was issued (if the warrant was issued under the hand
of the Secretary of State) or at the end of the period ending with the fifth working day
following the day on which it was issued (in any other case).

4.11

If at any time before the day on which a warrant would cease to have effect the Secretary
of State considers it necessary for the warrant to continue to have effect for the purpose
for which it was issued, the Secretary of State may by an instrument under his hand
renew it for a period of six months beginning with the day it would otherwise cease to
have effect.

Cancellations of warrants
4.12

The Secretary of State must cancel a warrant if he is satisfied that the action authorised
by it is no longer necessary.

4.13

The person who made the application to the Secretary of State must apply for its
cancellation, if he is satisfied that the warrant no longer meets the criteria upon which it
was authorised.

Retrieval of equipment
4.14

Because of the time it can take to remove the means of interference it may also be
necessary to renew an equipment interference warrant in order to complete the removal.
Applications to the Secretary of State for renewal should state why the operation is being
or has been closed down, why it has not been possible to remove the means of
interference and any relevant timescales for removal.

18

5. Keeping of records
Centrally retrievable records of warrants
5.1

The following information relating to all section 5 warrants for equipment interference
should be centrally retrievable for at least three years:
the date when a warrant is given;
the details of what equipment interference has occurred;
the result of periodic reviews of the warrants;
the date of every renewal; and
the date when any instruction was given by the Secretary of State to cease the
equipment interference.

19

6. Handling of information and safeguards

Overview
6.1

This chapter provides further guidance on the processing, retention, disclosure deletion
and destruction of any information obtained by the Intelligence Services pursuant to an
equipment interference warrant. This information may include communications content
and communications data as defined in section 21 of the 2000 Act.

6.2

The Intelligence Services must ensure that their actions when handling information
obtained by means of equipment interference comply with the legal framework set out in
the 1989 and 1994 Acts (including the arrangements in force under these Acts14), the
Data Protection Act 1998 and this code, so that any interference with privacy is justified
in accordance with Article 8(2) of the European Convention on Human Rights.
Compliance with this legal framework will ensure that the handling of information
obtained by equipment interference continues to be lawful, justified and strictly controlled,
and is subject to robust and effective safeguards against abuse.

Use of information as evidence

6.3

Subject to the provisions in chapter 3 of this code, information obtained through

equipment interference may be used as evidence in criminal proceedings. The
admissibility of evidence is governed primarily by the common law, the Civil Procedure
Rules, section 78 of the Police and Criminal Evidence Act 198415 and the 1998 Act.

Handling information obtained by equipment interference

6.4

Paragraphs 6.6 to 6.11 provide guidance as to the safeguards which must be applied by
the Intelligence Services to the processing, retention, disclosure and destruction of all
information obtained by equipment interference16. Each of the Intelligence Services must
ensure that there are internal arrangements in force, approved by the Secretary of State,
for securing that these requirements are satisfied in relation to all information obtained by
equipment interference.

6.5

These arrangements should be made available to the Intelligence Services

Commissioner. The arrangements must ensure that the disclosure, copying and
retention of information obtained by means of an equipment interference warrant is
limited to the minimum necessary for the proper discharge of the Intelligence Services
functions or for the additional limited purposes set out in section 2(2)(a) of the 1989 Act
and sections 2(2)(a) and 4(2)(a) of the 1994 Act. Breaches of these handling
arrangements must be reported to the Intelligence Services Commissioner as agreed
with him.

14

All information obtained by equipment interference must be handled in accordance with arrangements made
under section 2(2)(a) of the 1989 Act and sections 2(2)(a) and 4(2)(a) of the 1994 Act (and pursuant to sections
5(2)(c) and 7(3)(c) of the 1994 Act).
15
And section 76 of the Police and Criminal Evidence (Northern Ireland) Order 1989.
16
The application of these safeguards to all information obtained by equipment interference is without prejudice as
to whether section 6 of the 1998 Act requires the application of these safeguards to information other than
communications content and associated communications data.
20

Dissemination of information
6.6

The number of persons to whom any of the information is disclosed, and the extent of
disclosure, must be limited to the minimum necessary for the proper discharge of the
Intelligence Services functions or for the additional limited purposes described in
paragraph 6.5. This obligation applies equally to disclosure to additional persons within
an Intelligence Service, and to disclosure outside the service. It is enforced by prohibiting
disclosure to persons who do not hold the required security clearance, and also by the
need-to-know principle: information obtained by equipment interference must not be
disclosed to any person unless that persons duties are such that he needs to know
about the information to carry out those duties. In the same way only so much of the
information may be disclosed as the recipient needs; for example if a summary of the
information will suffice, no more than that should be disclosed.

6.7

The obligations apply not just to the Intelligence Service that obtained the information,
but also to anyone to whom the information is subsequently disclosed. In some cases
this may be achieved by requiring the latter to obtain the originators permission before
disclosing the information further. In others, explicit safeguards may be applied to
secondary recipients.

Copying
6.8

Information obtained by equipment interference may only be copied to the extent

necessary for the proper discharge of the Intelligence Services functions or for the
additional limited purposes described in paragraph 6.5. Copies include not only direct
copies of the whole of the information, but also extracts and summaries which identify
themselves as the product of an equipment interference operation. The restrictions must
be implemented by recording the making, distribution and destruction of any such copies,
extracts and summaries that identify themselves as the product of an equipment
interference operation.

Storage
6.9

Information obtained by equipment interference, and all copies, extracts and summaries
of it, must be handled and stored securely, so as to minimise the risk of loss or theft. It
must be held so as to be inaccessible to persons without the required level of security
clearance. This requirement to store such information securely applies to all those who
are responsible for the handling of the information.

Destruction
6.10

Communications content, communications data and other information obtained by

equipment interference, and all copies, extracts and summaries thereof, must be marked
for deletion and securely destroyed as soon as they are no longer needed for the
functions or purposes set out in paragraph 6.5. If such information is retained, it should
be reviewed at appropriate intervals to confirm that the justification for its retention is still
valid.

Personnel security
6.11

In accordance with the need-to-know principle, each of the Intelligence Services must
ensure that information obtained by equipment interference is only disclosed to persons
as necessary for the proper performance of the Intelligence Services statutory functions.
21

Persons viewing such product will usually require the relevant level of security clearance.
Where it is necessary for an officer to disclose information outside the service, it is that
officer's responsibility to ensure that the recipient has the necessary level of clearance.

22

7. Application of the code to equipment

interference pursuant to section 7 of the
1994 Act
Application of the code to other equipment interference
7.1

SIS and GCHQ must as a matter of policy17 apply the provisions of this code in any case
where equipment interference is to be, or has been, authorised pursuant to section 7 of
the 1994 Act in relation to equipment located outside the British Islands.

7.2

This chapter provides specific additional guidance on certain aspects of the process for
authorising equipment interference pursuant to section 7 of the 1994 Act. Save as
specified below, GCHQ and SIS must comply with all other provisions of this code in
relation to equipment interference under section 7. In particular, GCHQ and SIS must
apply all the same procedures and safeguards when conducting equipment interference
authorised pursuant to section 7 as they do in relation to equipment interference
authorised under section 5.

General basis for lawful activity

7.3

An authorisation under section 7 of the 1994 Act may be sought wherever members of
SIS or GCHQ, or persons acting on their behalf or in their support, conduct equipment
interference in relation to equipment located outside the British Islands that would
otherwise be unlawful. This includes cases where the act is done in the British Islands,
but is intended to be done in relation to apparatus that is or is believed to be outside the
British Islands, or in relation to anything appearing to originate from such apparatus18.

7.4

If a member of SIS or GCHQ wishes to interfere with equipment located overseas but the
subject of the operation is known to be in the British Islands, consideration should be
given as to whether a section 8(1) interception warrant or a section 16(3) certification (in
relation to one or more extant section 8(4) warrants) under the 2000 Act should be
obtained in advance of commencing the operation authorised under section 7. In the
event that any equipment located overseas is brought to the British Islands during the
currency of the section 7 authorisation, and the act is one that is capable of being
authorised by a warrant under section 5, the interference is covered by a 'grace period' of
5 working days (see section 7(10) to 7(14)). This period should be used either to obtain
a warrant under section 5 or to cease the interference (unless the equipment is removed
from the British Islands before the end of the period).

7.5

An application for a section 7 authorisation should usually19 be made by a member of SIS

or GCHQ for the taking of action in relation to that service. Responsibility for issuing
authorisations under section 7 rests with the Secretary of State.

7.6

An authorisation under section 7 may be specific to a particular operation or user, or may

relate to a broader class of operations. Where an authorisation relating to a broader
class of operations has been given by the Secretary of State under section 7, internal

17

And without prejudice as to arguments regarding the applicability of the ECHR.

See section 7(9).
19
Where two Intelligence Services are conducting equipment interference as part of a joint operation only one
authorisation is required.
18

23

approval to conduct operations under that authorisation in respect of equipment

interference must be sought from a designated senior official (see paragraphs 7.11 to
7.14).

Authorisations for equipment interference under section 7

7.7

An application for the giving or renewal of a section 7 authorisation is made to the

Secretary of State. Each application should contain the same information, as far as is
reasonably practicable in the circumstances, as an application for a section 5 equipment
interference warrant.

7.8

Before giving the authorisation, the Secretary of State must be satisfied that:
the equipment interference, or the operation in the course of which the equipment
interference will take place, will be necessary for the proper discharge of a function of
SIS or GCHQ;
there are satisfactory arrangements in force to secure that nothing will be done
beyond what is necessary for the discharge of SIS or GCHQ's functions and that the
nature and likely consequences of any acts done in reliance on the authorisation will
be reasonable having regard to the purposes for which they are carried out;
there are satisfactory arrangements in force under the 1994 Act in respect of
disclosure of any information obtained by means of the authorisation, and that any
information so obtained will be subject to those arrangements.

Urgent authorisation of a section 7 authorisation

7.9

Section 7(5) of the 1994 Act makes provision for cases in which an authorisation is
required urgently, yet the Secretary of State is not available to give the authorisation. In
these cases the Secretary of State will still personally authorise the equipment
interference but the authorisation is signed by a senior official, following discussion of the
case between the senior official and the Secretary of State.

7.10

The 1994 Act restricts issue of authorisations in this way to urgent cases where the
Secretary of State has expressly authorised the giving of the authorisation, and requires
the authorisation to contain a statement to that effect.

Other authorisations and internal approvals

7.11

An authorisation under section 7 may relate to a broad class of operations.

Authorisations of this nature are referred to specifically in section 7(4)(a) of the 1994 Act
which provides that the Secretary of State may give an authorisation which inter alia
relates to "acts of a description specified in the authorisation". The legal threshold for
giving such an authorisation is the same as for a specific authorisation.

7.12

Where an authorisation relating to a broader class of operations has been given by the
Secretary of State under section 7, internal approval to conduct operations under that
authorisation in respect of equipment interference must be sought from a designated
senior official. In any case where the equipment interference may result in the
acquisition of confidential information, authorisation must be sought from an Annex A
approving officer. Where knowledge of matters subject to legal privilege may be
acquired, the Annex A approving officer must apply the tests set out at paragraph 3.4 to
3.7 (and "Secretary of State" should be read as "Annex A approving officer" for these
purposes).
24

7.13

The application for approval must set out the necessity, justification, proportionality and
risks of the particular operation, and should contain the same information, as and where
appropriate, as an application for a section 5 equipment interference warrant. Before
granting the internal approval, the designated senior official or Annex A approving officer
must be satisfied that the operation is necessary for the proper discharge of the functions
of the Intelligence Service, and that the taking of the action is proportionate to what the
action seeks to achieve. The designated senior official or Annex A approving officer
must consult the Foreign and Commonwealth Office or seek the endorsement of the
Secretary of State for any particularly sensitive operations.

7.14

All internal approvals must be subject to periodic review at least once every 6 months to
ensure the operations continue to be necessary and proportionate. The approvals for
particularly sensitive operations should be reviewed more frequently, depending on the
merits of the case.

Renewals of authorisations
7.15

A section 7 authorisation, unless renewed, ceases to have effect at the end of the period
of six months beginning with the day on which it was given (if the authorisation was given
under the hand of the Secretary of State) or at the end of the period ending with the fifth
working day following the day on which it was given (in any other case).

7.16

If at any time before the day on which an authorisation would cease to have effect the
Secretary of State considers it necessary for the authorisation to continue to have effect
for the purpose for which it was given, the Secretary of State may by an instrument under
his hand renew it for a period of six months beginning with the day it would otherwise
cease to have effect.

Cancellations of authorisations
7.17

20

The Secretary of State must cancel an authorisation if he is satisfied that any act
authorised by it is no longer necessary20.

See section 7(8).

25

8. Oversight by Intelligence Services

Commissioner
8.1

The Intelligence Services Commissioner provides independent oversight of the use by

the Intelligence Services of the powers contained within the 1994 Act. This code does
not cover the exercise of any of the Commissioners functions.

8.2

It is the duty of any member of the Intelligence Services who uses these powers to
comply with any request made by the Commissioner to disclose or provide any
information he requires for the purpose of enabling him to carry out his functions. Such
persons must also report any action that is believed to be contrary to the provisions of
the 1994 Act to the Commissioner.

26

9. Complaints
9.1

The 2000 Act establishes an independent Tribunal (the Investigatory Powers Tribunal).
This Tribunal will be made up of designated 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. This Code does not cover the
exercise of the Tribunals functions.

9.2

Details of the relevant complaints procedure are available on the Tribunals website at:
http://www.ipt-uk.com or can be obtained from the following address:
Investigatory Powers Tribunal
PO Box 33220
London
SW1H 9ZQ
020 7035 3711

27

10. Glossary
Confidential information

Confidential personal information (such as

medical records or spiritual counselling),
confidential journalistic material, confidential
discussions between Members of Parliament
and their constituents, or matters subject to
legal privilege. See Chapter 3 for a full
explanation.

Designated senior official

Designated senior official means a person

holding at least the grade of Deputy Director
with SIS or GCHQ and who has been
designated for the purpose in question by (as
relevant) the Chief of the SIS or the Director of
GCHQ or their nominated deputies.

Equipment interference

Any interference (whether remotely or

otherwise) by the Intelligence Services, or
persons acting on their behalf of in their
support, with equipment producing
electromagnetic, acoustic and other emissions,
or information derived from or related to such
equipment, which is to be authorised under
section 5 of the 1994 Act, in order to do any or
all of the following:
a) obtain information from the equipment in
pursuit of intelligence requirements;
b) obtain information concerning the
ownership, nature and use of the
equipment with a view to meeting
intelligence requirements;
c) locate and examine, remove, modify or
substitute equipment hardware or software
which is capable of yielding information of
the type described in a) and b);
d) enable and facilitate surveillance activity by
means of the equipment;
Information may include communications
content, and communications data as defined
in section 21 of the 2000 Act.

Intelligence Services

The Security Service, SIS and GCHQ.

Internal approval

Internal approval given by a designated senior

official to conduct operations under an
authorisation relating to a broader class of
operations given by the Secretary of State
under section 7 of the 1994 Act.

28

Legal privilege

Matters subject to legal privilege are defined

(as relevant) in section 98 of the Police Act
1997, section 33 of the Criminal Law
(Consolidation) (Scotland) Act 1995 and Article
12 of the Police and Criminal Evidence
(Northern Ireland) Order 1989. This includes
certain communications between professional
legal advisers and their clients or persons
representing the client.

Public authority

Any public organisation, including the

Intelligence Services.

Secretary of State

Any Secretary of State (in practice this will

generally be the Home Secretary in the case
of the Security Service, and the Foreign
Secretary in the case of SIS and GCHQ).

29

11. Annex A
Authorisation levels when knowledge of confidential information is likely to be acquired

Intelligence Service

Authorisation level

The Security Service

Deputy Director General

The Secret Intelligence Service

A Director of the Secret Intelligence

Service

The Government Communications

Headquarters

A Director of the Government

Communications Headquarters

30

Regulation of Investigatory Powers Act 2000

Consultation: Equipment Interference and Interception
of Communications Codes of Practice
6 February 2015

Ministerial Foreword
The abilities to read or listen to a suspects communications or to interfere with his or her
computer equipment are among the most important, sensitive, and closely scrutinised powers
available to the state. As the threat to the UK from terrorism, espionage and organised crime
has diversified, these powers have become more important. Those who mean us harm use
internet-based communications to plan, direct and increasingly execute their plots.
Terrorists, paedophiles and serious criminals are increasingly sophisticated in their use of
technology and they are going further in their efforts to evade detection. It is vital that the police
and their partners in the Security and Intelligence Agencies are able to stop them.
There are limits on what can be said in public about this work. But it is imperative that the
Government is as open as it can be about these capabilities and how they are used. The public
and Parliament needs to have confidence that there is a robust statutory framework for the use
of such intrusive investigative powers and that there is a strong system of safeguards in place.
The revised and updated draft Interception of Communications Code of Practice published
today provides more information than ever on the safeguards that apply to the security and law
enforcement agencies work to identify and disrupt threats. And it provides further detail on the
protections afforded to the most sensitive communications (such as those between lawyer and
client) that may be intercepted.
The new draft Equipment Interference Code of Practice details the safeguards applied to
different investigative techniques, including the use of computer network exploitation, to identify,
track and disrupt the most sophisticated targets. It makes clear the role of the Secretary of
State in authorising the use of such intrusive techniques only where it is necessary and
proportionate to do so. This new draft Code reflects the approach in the existing and published
guidance in the Covert Surveillance and Property Interference Revised Code of Practice.
In order to continue to keep us safe, the Security and Intelligence Agencies need the full range
of investigatory tools at their disposal. But the public needs to know that these powers are used
appropriately and are subject to stringent oversight.
We look forward to receiving your responses.

James Brokenshire MP
Minister of State for Immigration and Security

Why are we consulting?

This consultation contains proposals to update the Interception of Communications Code of
Practice and to publish a new Equipment Interference Code of Practice. The Regulation of
Investigatory Powers Act 2000 (RIPA) requires the Secretary of State to prepare and publish a
draft of these Codes and to consider any representations made about those drafts. This
consultation fulfils that requirement.

Scope of the consultation

Topic of this consultation:

This consultation is on the draft Interception of

Communications Code of Practice and the
draft Equipment Interference Code of Practice.

Scope of this consultation:

This consultation seeks representations on the

draft Codes of Practice.

Geographical scope:

UK wide.

Basic Information
To:

Representations are invited from Parliament,

professional bodies, interest groups and the
wider public.

Duration:

6 weeks, closing on 20 March 2015.

Enquiries and responses:

Enquiries and responses should be sent to

RIPA@homeoffice.x.gsi.gov.uk
Please indicate in your response whether you
are content for it to be published, with or
without attributing it to you/ your organisation.

After the consultation:

Following the consultation period, responses

will be analysed and the draft Codes revised
accordingly. They will then be laid before
Parliament for approval.

Background
Getting to this stage:

We consulted the law enforcement and

intelligence community, the Interception of
Communications Commissioner (who
oversees the operation of Part 1 of the
Regulation of Investigatory Powers Act 2000)
and the Intelligence Services Commissioner
(who oversees the operation of sections 5 to 7
of the Intelligence Services Act 1994).

Introduction
The ability to intercept the communications of those who mean us harm is a vital tool in the fight
against terrorism and serious crime. Since 2010, the majority of the MI5s top priority UK
counter-terrorism investigations have used intercept capabilities in some form to identify,
understand or disrupt plots seeking to harm the UK and its citizens.
Interception is among the most intrusive powers available to law enforcement and the security
agencies. For that reason it is subject to strict safeguards in the Regulation of Investigatory
Powers Act 2000 (RIPA). Interception warrants are issued and renewed by the Secretary of
State, for a small number of agencies and for a limited range of purposes. RIPA also provides
for independent oversight by the Interception of Communications Commissioner and an
impartial route of redress, through the Investigatory Powers Tribunal.
Increasingly, terrorists and serious criminals are using sophisticated techniques to communicate
covertly and evade detection. That requires the Security and Intelligence Agencies in particular
to make use of new and innovative capabilities to identify and disrupt them. The Security
Services Act 1989 and the Intelligence Services Act 1994 (ISA) provide the legislative basis for
the Security and Intelligence Agencies (SIA) - the Security Service (MI5), the Secret Intelligence
Service (SIS) and Government Communications Headquarters (GCHQ) - to interfere with
computers and communications devices. Warrants may only be issued by the Secretary of
State where they consider the activities to be authorised are necessary and proportionate. The
use of the powers is subject to independent oversight by the Intelligence Services
Commissioner.
Interception of Communications
This Code of Practice regulates the powers and duties conferred or imposed under Chapter 1 of
Part 1 of RIPA, which provides for the interception of communications. It also provides
guidance on the procedures that must be followed before interception under a warrant may take
place.
The extant interception Code was brought into force in 2002.
This Government is committed to making publicly available significantly more information about
the safeguards that underpin the interception of external communications under section 8(4) of
RIPA. These are not new safeguards the Security and Intelligence Agencies have always had
robust internal arrangements, which are overseen by the Interception of Communications
Commissioner but we are now able to put more detail into the public domain than we ever
have before.
The key changes reflected in the revised draft Code of Practice are:
Additional information on the safeguards that exist for the interception and handling of
external communications under section 8(4) RIPA.

Further information around the protections afforded to legally privileged material and
other confidential material. This makes explicit the robust safeguards that ensure such
communications are not misused.
Minor changes to reflect the following provisions in the Data Retention and Investigatory
Powers Act 2014 (DRIPA):
o Extra-territoriality. The Code provides guidance on service of warrants and
notices on communication service providers outside the UK.
o Telecommunication services. The Code reflects the clarification of the existing
definition of telecommunications service in RIPA which makes clear that internet
based services are included.
Changes to reflect developments in the law since 2002, including:
o Amendments to reflect the introduction of the Regulation of Investigatory Powers
(Monetary Penalty Notices and Consents for Interceptions) Regulations, which
came into force in June 2011 and which provided for a new offence of
unintentional interception; and
o Clarification, in view of recent court judgments, of the treatment of stored
communications, specifically with regard to unauthorised accessing of voicemails.

Equipment Interference
The draft Equipment Interference Code of Practice applies to the activities of the Security and
Intelligence Agencies in the UK and overseas. The draft Code explains when the Security and
Intelligence Agencies can lawfully interfere with electronic equipment, such as computers, and
the rules and safeguards that govern the use of any information obtained by these means. It
sets out the procedures that must be followed before such interference can take place, the
processing, retention, destruction and disclosure of any information obtained by means of the
interference, and the independent oversight provided by the Intelligence Services
Commissioner.
As equipment interference is essentially a type of property interference, the draft Code is similar
to the existing published guidance in the Covert Surveillance and Property Interference Revised
Code of Practice regarding the process for authorising equipment interference, record keeping,
oversight and complaints. The draft Code also mirrors the handling safeguards for intercepted
material in the Interception Code of Practice and introduces guidance relating to the
authorisation of equipment interference outside the UK under section 7 of the Intelligence
Services Act 1994.
Responses to this consultation, or a summary of such responses, may be published (with the
permission of the respondent) in the interest of ensuring an informed and transparent debate.