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U.K.

Regulation of Investigatory Powers Act 2000

2000 CHAPTER 23

An Act to make provision for and about the interception of communications, the acquisition and disclosure of data relating to communications, the carrying out of surveillance, the use of covert human intelligence sources and the acquisition of the means by which electronic data protected by encryption or passwords may be decrypted or accessed; to provide for Commissioners and a tribunal with functions and jurisdiction in relation to those matters, to entries on and interferences with property or with wireless telegraphy and to the carrying out of their functions by the Security Service, the Secret Intelligence Service and the Government Communications Headquarters; and for connected purposes.

[28th July 2000]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Modifications etc. (not altering text)

C1Act power to apply (with modifications) conferred (temp.) (25.3.2020) by Coronavirus Act 2020 (c. 7), ss. 22(4), 87(1) (with ss. 22(7), 88-90) (and which affecting provision expires (25.3.2022) by virtue of Coronavirus Act 2020 (c. 7), s. 89 (with s. 90))

C2Act modified (temp.) (25.3.2020) by Coronavirus Act 2020 (c. 7), ss. 22(6), 87(1) (with ss. 22(7), 88-90) (and which affecting provision expires (25.3.2022) by virtue of Coronavirus Act 2020 (c. 7), s. 89 (with s. 90))

C3Act expiry of earlier affecting provision 2020 c. 7, s. 22 (25.3.2022) by Coronavirus Act 2020 (c. 7), s. 89 (with s. 90)

Part IU.K. Communications

F1Chapter IU.K. Interception

Textual Amendments

F1Pt. 1 Ch. 1 omitted (12.3.2018 for the omission of ss. 12, 13, 14(2)(c), 27.6.2018 for the omission of ss. 1 (for specified purposes), 3, 4, 17, 18, 19, 8.8.2018 for the omission of ss. 6, 9 for specified purposes, 26.9.2018 for the omission of s. 1 so far as not already in force, 7.11.2018 for the omission of ss. 6 (so far as not already in force), 7, 9 (for specified purposes), 27.12.2018 in so far as not already in force) by virtue of Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 45 (with Sch. 9 paras. 7, 8, 10); S.I. 2018/341, reg. 2(n) (with reg. 3); S.I. 2018/652, regs. 13, 14(c) (with regs. 15(4), 16, 19(1)(6)); S.I. 2018/940, regs. 3(h), 4(a), 5(f)

Unlawful and authorised interceptionU.K.

F11 Unlawful interception.U.K.

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F12 Meaning and location of “interception”U.K.

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F13 Lawful interception without an interception warrant.U.K.

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F14 Power to provide for lawful interception.U.K.

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F15 Interception with a warrant.U.K.

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Interception warrantsU.K.

F16 Application for issue of an interception warrant.U.K.

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F17 Issue of warrants.U.K.

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F18 Contents of warrants.U.K.

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F19 Duration, cancellation and renewal of warrants.U.K.

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F110 Modification of warrants and certificates.U.K.

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F111 Implementation of warrants.U.K.

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Interception capability and costsU.K.

F112 Maintenance of interception capability.U.K.

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F113 Technical Advisory Board.U.K.

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F114 Grants for interception costs.U.K.

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Restrictions on use of intercepted material etc.U.K.

F115 General safeguards.U.K.

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F116 Extra safeguards in the case of certificated warrants.U.K.

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F117 Exclusion of matters from legal proceedings.U.K.

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F118 Exceptions to section 17.U.K.

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F119 Offence for unauthorised disclosures.U.K.

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Interpretation of Chapter IU.K.

F120 Interpretation of Chapter I.U.K.

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F2Chapter IIU.K. Acquisition and disclosure of communications data

Textual Amendments

F221 Lawful acquisition and disclosure of communications data.U.K.

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F222 Obtaining and disclosing communications data.U.K.

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F223 Form and duration of authorisations and notices.U.K.

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F223AAuthorisations requiring judicial approvalU.K.

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F223BProcedure for judicial approvalU.K.

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F224 Arrangements for payments.U.K.

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F225 Interpretation of Chapter II.U.K.

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Part IIU.K. Surveillance and covert human intelligence sources

Modifications etc. (not altering text)

C5Pt. II (ss. 26-48) applied (with modifications)(16.3.2001) by S.I. 2001/1057, arts. 2, 3

Pt. II (ss. 26-48): power to apply (with modifications) conferred (1.10.2002) by 2002 c. 30, s. 19(2)(a); S.I. 2002/2306, art. 2(b)(v)

IntroductoryU.K.

26 Conduct to which Part II applies.U.K.

(1)This Part applies to the following conduct—

(a)directed surveillance;

(b)intrusive surveillance; F3...

(c)the conduct and use of covert human intelligence sources [F4; and

(d)criminal conduct in the course of, or otherwise in connection with, the conduct of covert human intelligence sources]

(2)Subject to subsection (6), surveillance is directed for the purposes of this Part if it is covert but not intrusive and is undertaken—

(a)for the purposes of a specific investigation or a specific operation;

(b)in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation); and

(c)otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under this Part to be sought for the carrying out of the surveillance.

(3)Subject to subsections (4) to (6), surveillance is intrusive for the purposes of this Part if, and only if, it is covert surveillance that—

(a)is carried out in relation to anything taking place on any residential premises or in any private vehicle; and

(b)involves the presence of an individual on the premises or in the vehicle or is carried out by means of a surveillance device.

(4)For the purposes of this Part surveillance is not intrusive to the extent that—

(a)it is carried out by means only of a surveillance device designed or adapted principally for the purpose of providing information about the location of a vehicle; or

(b)it is surveillance consisting in any such interception of a communication as falls within section 48(4).

(5)For the purposes of this Part surveillance which—

(a)is carried out by means of a surveillance device in relation to anything taking place on any residential premises or in any private vehicle, but

(b)is carried out without that device being present on the premises or in the vehicle,

is not intrusive unless the device is such that it consistently provides information of the same quality and detail as might be expected to be obtained from a device actually present on the premises or in the vehicle.

(6)For the purposes of this Part surveillance which—

(a)is carried out by means of apparatus designed or adapted for the purpose of detecting the installation or use in any residential or other premises of a television receiver (within the meaning of [F5Part 4 of the Communications Act 2003)], and

(b)is carried out from outside those premises exclusively for that purpose,

is neither directed nor intrusive.

(7)In this Part—

(a)references to the conduct of a covert human intelligence source are references to any conduct of such a source which falls within any of paragraphs (a) to (c) of subsection (8), or is incidental to anything falling within any of those paragraphs; and

(b)references to the use of a covert human intelligence source are references to inducing, asking or assisting a person to engage in the conduct of such a source, or to obtain information by means of the conduct of such a source.

(8)For the purposes of this Part a person is a covert human intelligence source if—

(a)he establishes or maintains a personal or other relationship with a person for the covert purpose of facilitating the doing of anything falling within paragraph (b) or (c);

(b)he covertly uses such a relationship to obtain information or to provide access to any information to another person; or

(c)he covertly discloses information obtained by the use of such a relationship, or as a consequence of the existence of such a relationship.

[F6(8A)In this Part references to criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source are references to any conduct that—

(a)disregarding this Part, would constitute crime, and

(b)consists of, is in the course of, or is otherwise in connection with, the conduct of a covert human intelligence source.]

(9)For the purposes of this section—

(a)surveillance is covert if, and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place;

(b)a purpose is covert, in relation to the establishment or maintenance of a personal or other relationship, if and only if the relationship is conducted in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the purpose; and

(c)a relationship is used covertly, and information obtained as mentioned in subsection (8)(c) is disclosed covertly, if and only if it is used or, as the case may be, disclosed in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the use or disclosure in question.

(10)In this section “private information”, in relation to a person, includes any information relating to his private or family life.

(11)References in this section, in relation to a vehicle, to the presence of a surveillance device in the vehicle include references to its being located on or under the vehicle and also include references to its being attached to it.

Textual Amendments

F3Word in s. 26(1)(b) omitted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by virtue of Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), ss. 1(2)(a), 9(2); S.I. 2021/605, reg. 2(a)(b)(c) (with reg. 3(a)(b)(c))

F4S. 26(1)(d) and word inserted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), ss. 1(2)(b), 9(2); S.I. 2021/605, reg. 2(a)(b)(c) (with reg. 3(a)(b)(c))

F5Words in s. 26(6)(a) substituted (1.4.2004) by Communications Act 2003 (c. 21), ss. 406, 411(2)(3), Sch. 17 para. 161(2) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 4(2), Sch. 2

F6S. 26(8A) inserted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), ss. 1(3), 9(2); S.I. 2021/605, reg. 2(a)(b)(c) (with reg. 3(a)(b)(c))

Authorisation of surveillance and human intelligence sourcesU.K.

27 Lawful surveillance etc.U.K.

(1)Conduct to which this Part applies shall be lawful for all purposes if—

(a)an authorisation under this Part confers an entitlement to engage in that conduct on the person whose conduct it is; and

(b)his conduct is in accordance with the authorisation.

(2)A person shall not be subject to any civil liability in respect of any conduct of his which—

(a)is incidental to any conduct that is lawful by virtue of subsection (1); and

(b)is not itself conduct an authorisation or warrant for which is capable of being granted under a relevant enactment and might reasonably have been expected to have been sought in the case in question.

(3)The conduct that may be authorised under this Part includes conduct outside the United Kingdom.

(4)In this section “relevant enactment” means—

(a)an enactment contained in this Act [F7or the Investigatory Powers Act 2016];

(b)section 5 of the M1Intelligence Services Act 1994 (warrants for the intelligence services); or

(c)an enactment contained in Part III of the M2Police Act 1997 (powers of the police and of [F8officers of Revenue and Customs).]

Textual Amendments

F8Words in s. 27(4)(c) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 9; S.I. 2008/219, art. 2(b)

Marginal Citations

[F927ASection 27: criminal injuries compensation for s. 29B conductU.K.

For the purposes of—

(a)the Criminal Injuries Compensation Act 1995,

(b)the Scheme made under that Act,

(c)the Criminal Injuries Compensation (Northern Ireland) Order 2002 (S.I. 2002/796 (N.I. 1)), and

(d)the Scheme made under that Order,

section 27(1) has no effect in relation to conduct authorised under section 29B.]

Textual Amendments

F9S. 27A inserted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), ss. 5, 9(2); S.I. 2021/605, reg. 2(a)(b)(c)

28 Authorisation of directed surveillance.U.K.

(1)Subject to the following provisions of this Part, the persons designated for the purposes of this section shall each have power to grant authorisations for the carrying out of directed surveillance.

(2)A person shall not grant an authorisation for the carrying out of directed surveillance unless he believes—

(a)that the authorisation is necessary on grounds falling within subsection (3); and

(b)that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out.

(3)An authorisation is necessary on grounds falling within this subsection if it is necessary—

(a)in the interests of national security;

(b)for the purpose of preventing or detecting crime or of preventing disorder;

(c)in the interests of the economic well-being of the United Kingdom;

(d)in the interests of public safety;

(e)for the purpose of protecting public health;

(f)for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or

(g)for any purpose (not falling within paragraphs (a) to (f)) which is specified for the purposes of this subsection by an order made by the Secretary of State.

(4)The conduct that is authorised by an authorisation for the carrying out of directed surveillance is any conduct that—

(a)consists in the carrying out of directed surveillance of any such description as is specified in the authorisation; and

(b)is carried out in the circumstances described in the authorisation and for the purposes of the investigation or operation specified or described in the authorisation.

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

29 Authorisation of covert human intelligence sources.U.K.

(1)Subject to the following provisions of this Part, the persons designated for the purposes of this section shall each have power to grant authorisations for the conduct or the use of a covert human intelligence source.

(2)A person shall not grant an authorisation for the conduct or the use of a covert human intelligence source unless he believes—

(a)that the authorisation is necessary on grounds falling within subsection (3);

(b)that the authorised conduct or use is proportionate to what is sought to be achieved by that conduct or use; and

[F10(c)that arrangements exist for the source's case that satisfy—

(i)the requirements of subsection (4A), in the case of a source of a relevant collaborative unit;

F11(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iii)the requirements of subsection (5), in the case of any other source;

and that satisfy such other requirements as may be imposed by order made by the Secretary of State.]

[F12(2A)For the meaning of “relevant collaborative unit” in subsection (2)(c)(i), see section 29A.]

(3)An authorisation is necessary on grounds falling within this subsection if it is necessary—

(a)in the interests of national security;

(b)for the purpose of preventing or detecting crime or of preventing disorder;

(c)in the interests of the economic well-being of the United Kingdom;

(d)in the interests of public safety;

(e)for the purpose of protecting public health;

(f)for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or

(g)for any purpose (not falling within paragraphs (a) to (f)) which is specified for the purposes of this subsection by an order made by the Secretary of State.

(4)The conduct that is authorised by an authorisation for the conduct or the use of a covert human intelligence source is any conduct that—

(a)is comprised in any such activities involving conduct of a covert human intelligence source, or the use of a covert human intelligence source, as are specified or described in the authorisation;

(b)consists in conduct by or in relation to the person who is so specified or described as the person to whose actions as a covert human intelligence source the authorisation relates; and

(c)is carried out for the purposes of, or in connection with, the investigation or operation so specified or described.

[F13(4A)For the purposes of this Part there are arrangements for the source's case that satisfy the requirements of this subsection if such arrangements are in force as are necessary for ensuring—

(a)that there will at all times be a qualifying person who will have day-to-day responsibility for dealing with the source, and for the source's security and welfare [F14 (see section 29A for the meaning of “qualifying person”) ];

(b)that there will at all times be another qualifying person who will have general oversight of the use made of the source;

(c)that there will at all times be a qualifying person who will have responsibility for maintaining a record of the use made of the source;

(d)that the records relating to the source that are maintained by virtue of paragraph (c) will always contain particulars of all such matters (if any) as may be specified for the purposes of this paragraph in regulations made by the Secretary of State; and

(e)that records maintained by virtue of paragraph (c) that disclose the identity of the source will not be available to persons except to the extent that there is a need for access to them to be made available to those persons.

F15(4B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(5)For the purposes of this Part there are arrangements for the source’s case that satisfy the requirements of this subsection if such arrangements are in force as are necessary for ensuring—

(a)that there will at all times be a person holding an office, rank or position with the relevant investigating authority who will have day-to-day responsibility for dealing with the source on behalf of that authority, and for the source’s security and welfare;

(b)that there will at all times be another person holding an office, rank or position with the relevant investigating authority who will have general oversight of the use made of the source;

(c)that there will at all times be a person holding an office, rank or position with the relevant investigating authority who will have responsibility for maintaining a record of the use made of the source;

(d)that the records relating to the source that are maintained by the relevant investigating authority will always contain particulars of all such matters (if any) as may be specified for the purposes of this paragraph in regulations made by the Secretary of State; and

(e)that records maintained by the relevant investigating authority that disclose the identity of the source will not be available to persons except to the extent that there is a need for access to them to be made available to those persons.

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

[F16(6ZA)An authorisation for the conduct or the use of a covert human intelligence source does not authorise any criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source (but see section 29B for provision for the authorisation of such conduct).]

[F17(6A)An authorisation under this section may not have the effect of authorising a covert human intelligence source who is a person designated under section 38 of the Police Reform Act 2002 to establish contact in person with another person.]

(7)The Secretary of State may by order—

(a)prohibit the authorisation under this section of any such conduct or uses of covert human intelligence sources as may be described in the order; and

(b)impose requirements, in addition to those provided for by subsection (2), that must be satisfied before an authorisation is granted under this section for any such conduct or uses of covert human intelligence sources as may be so described.

F18(7A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F19(7B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8)In this section “relevant investigating authority”, in relation to an authorisation for the conduct or the use of an individual as a covert human intelligence source, means (subject to subsection (9)) the public authority for whose benefit the activities of that individual as such a source are to take place.

(9)In the case of any authorisation for the conduct or the use of a covert human intelligence source whose activities are to be for the benefit of more than one public authority, the references in subsection (5) to the relevant investigating authority are references to one of them (whether or not the same one in the case of each reference).

F20(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F12S. 29(2A) substituted (31.1.2017 for specified purposes, 31.3.2017 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), s. 183(5)(e)(6)(b), Sch. 19 para. 3(2)

F14Words in s. 29(4A)(a) inserted (31.1.2017 for specified purposes, 31.3.2017 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), s. 183(5)(e)(6)(b), Sch. 19 para. 3(3)

F16S. 29(6ZA) inserted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), ss. 1(4), 9(2); S.I. 2021/605, reg. 2(a)(b)(c) (with reg. 3(a)(b)(c))

F17S. 29(6A) inserted (31.1.2017 for specified purposes, 15.12.2017 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), ss. 44, 183(1)(5)(e); S.I. 2017/1139, reg. 2(j) (as amended by S.I. 2017/1162, reg. 2)

F18S. 29(7A) omitted (31.1.2017 for specified purposes, 31.3.2017 in so far as not already in force) by virtue of Policing and Crime Act 2017 (c. 3), s. 183(5)(e)(6)(b), Sch. 19 para. 3(4)

F20S. 29(10) omitted (31.1.2017 for specified purposes, 31.3.2017 in so far as not already in force) by virtue of Policing and Crime Act 2017 (c. 3), s. 183(5)(e)(6)(b), Sch. 19 para. 3(5)

Modifications etc. (not altering text)

C7S. 29 excluded (10.8.2021 for specified purposes, 15.9.2021 for specified purposes) by S.I. 2000/2793, art. 5 (as amended by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), ss. 2(6), 9(2) (with s. 2(9)); S.I. 2021/605, reg. 2(a)(b))

C8S. 29 excluded (10.8.2021 for specified purposes, 15.9.2021 for specified purposes) by S.I. 2000/2793, art. 3 (as amended by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), ss. 2(5), 9(2) (with s. 2(9)); S.I. 2021/605, reg. 2(a)(b))

C9S. 29(2)(c) modified (6.11.2000) by S.I. 2000/2793, art. 4

[F2129ASection 29: supplementary provision in relation to relevant collaborative unitsU.K.

(1)For the purposes of section 29(2)(c)(i), a “relevant collaborative unit” is a unit that falls within subsection (2) or (3).

(2)A unit falls within this subsection if—

(a)it consists of two or more police forces whose chief officers of police have made an agreement under section 22A of the Police Act 1996, and

(b)the agreement relates to the discharge by persons holding offices, ranks or positions with any of the forces of functions in connection with the conduct or use of the covert human intelligence source concerned.

(3)A unit falls within this subsection if—

(a)it consists of one or more police forces and the National Crime Agency,

(b)it is in place by virtue of an agreement made under section 22A of the Police Act 1996, and

(c)the agreement relates to the discharge by persons holding offices, ranks or positions within any such force, or by persons who are National Crime Agency officers, of functions in connection with the conduct or use of the covert human intelligence source concerned.

(4)In the case of a relevant collaborative unit that falls within subsection (2), a person is a “qualifying person” for the purposes of section 29(4A) if—

(a)the person holds an office, rank or position with a police force whose chief officer of police is a party to the agreement mentioned in subsection (2)(a) above, and

(b)the person is permitted by the terms of the agreement to have the responsibility mentioned in section 29(4A)(a) or (c) or the general oversight mentioned in section 29(4A)(b).

(5)In the case of a relevant collaborative unit that falls within subsection (3), a person is a qualifying person for the purposes of section 29(4A) if—

(a)the person—

(i)is a National Crime Agency officer, or

(ii)holds an office, rank or position with a police force whose chief officer of police is a party to the agreement mentioned in subsection (3)(b) above, and

(b)the person is permitted by the terms of the agreement to have the responsibility mentioned in section 29(4A)(a) or (c) or the general oversight mentioned in section 29(4A)(b).

(6)For the purposes of this section references to a police force are to the following—

(a)any police force maintained under section 2 of the Police Act 1996 (police forces in England and Wales outside London),

(b)the metropolitan police force, and

(c)the City of London police force.]

Textual Amendments

F21S. 29A inserted (31.1.2017 for specified purposes, 31.3.2017 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), s. 183(5)(e)(6)(b), Sch. 19 para. 4

[F2229BCovert human intelligence sources: criminal conduct authorisationsU.K.

(1)Subject to the following provisions of this Part, the persons designated for the purposes of this section each have power to grant criminal conduct authorisations.

(2)A “criminal conduct authorisation” is an authorisation for criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source.

(3)A criminal conduct authorisation may only be granted in relation to a covert human intelligence source after, or at the same time as, an authorisation under section 29 which authorises the conduct or the use of the covert human intelligence source concerned.

(4)A person may not grant a criminal conduct authorisation unless the person believes—

(a)that the authorisation is necessary on grounds falling within subsection (5);

(b)that the authorised conduct is proportionate to what is sought to be achieved by that conduct; and

(c)that arrangements exist that satisfy such requirements as may be imposed by order made by the Secretary of State.

(5)A criminal conduct authorisation is necessary on grounds falling within this subsection if it is necessary—

(a)in the interests of national security;

(b)for the purpose of preventing or detecting crime or of preventing disorder; or

(c)in the interests of the economic well-being of the United Kingdom.

(6)In considering whether the requirements in subsection (4)(a) and (b) are satisfied, the person must take into account whether what is sought to be achieved by the authorised conduct could reasonably be achieved by other conduct which would not constitute crime.

(7)Subsection (6) is without prejudice to the need to take into account other matters so far as they are relevant (for example, the requirements of the Human Rights Act 1998).

(8)The conduct that is authorised by a criminal conduct authorisation is any conduct that—

(a)is comprised in any activities—

(i)which involve criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source, and

(ii)are specified or described in the authorisation;

(b)consists in conduct by or in relation to the person who is so specified or described as the covert human intelligence source to whom the authorisation relates; and

(c)is carried out for the purposes of, or in connection with, the investigation or operation so specified or described.

(9)If an authorisation under section 29, which authorises the conduct or the use of a covert human intelligence source to whom a criminal conduct authorisation relates, ceases to have effect, the criminal conduct authorisation also ceases to have effect so far as it relates to that covert human intelligence source (but this is without prejudice to whether the criminal conduct authorisation continues to have effect so far as it relates to any other covert human intelligence source).

(10)The Secretary of State may by order—

(a)prohibit the authorisation under this section of any such conduct as may be described in the order; and

(b)impose requirements, in addition to those provided for by subsections (3) and (4) and sections 29C and 29D, that must be satisfied before an authorisation is granted under this section for any such conduct as may be so described.]

Textual Amendments

F22S. 29B inserted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), ss. 1(5), 9(2); S.I. 2021/605, reg. 2(a)(b)(c) (with reg. 3(a)(b)(c))

Modifications etc. (not altering text)

C10S. 29B excluded (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by S.I. 2000/2793, art. 7(1) (as inserted by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), ss. 2(8), 9(2) (with s. 2(9)); S.I. 2021/605, reg. 2(a)(b)(c))

C11S. 29B excluded (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by S.I. 2000/2793, art. 8(1) (as inserted by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), ss. 2(8), 9(2) (with s. 2(9)); S.I. 2021/605, reg. 2(a)(b)(c))

C12S. 29B(4)(c) modified (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by S.I. 2000/2793, art. 9 (as inserted by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), ss. 2(8), 9(2) (with s. 2(9)); S.I. 2021/605, reg. 2(a)(b)(c))

[F2329CCriminal conduct authorisations: safeguards for juvenilesU.K.

(1)This section applies in relation to the grant of a juvenile criminal conduct authorisation.

(2)“A juvenile criminal conduct authorisation” is an authorisation under section 29B for criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source where that source is under the age of 18 (“the juvenile source”).

(3)In addition to satisfying the requirements of section 29B, a person may grant a juvenile criminal conduct authorisation only if—

(a)the person has considered the results of an appropriate risk assessment;

(b)there are exceptional circumstances such that—

(i)it is not reasonably foreseeable in the circumstances as the person believes them to be that any harm to the juvenile source would result from the grant of the authorisation, and

(ii)the person believes the authorisation would be compatible with the need to safeguard and promote the best interests of the juvenile source; and

(c)the person believes that appropriate arrangements for meetings are in force.

(4)For the purposes of subsection (3)(a), “an appropriate risk assessment” means an assessment which—

(a)identifies and evaluates the nature and magnitude of the risks of harm to the juvenile source arising in the course of, or as result of, the conduct authorised by the authorisation; and

(b)is carried out in accordance with provision made by the Secretary of State by regulations under this paragraph.

(5)In subsections (3)(b)(i) and (4)(a), “harm” means—

(a)physical injury; or

(b)psychological distress.

(6)For the purposes of subsection (3)(c), “appropriate arrangements for meetings” are such arrangements for the juvenile source's case as are necessary for ensuring—

(a)that, at all times when the juvenile source is under the age of 16, there will be a relevant person who will have responsibility for ensuring that an appropriate adult is present at all meetings in relation to the authorisation which take place between the source and a person representing a relevant investigating authority; and

(b)that, at all times when the juvenile source is 16 or 17 years old, there will be a relevant person who will have responsibility for—

(i)ensuring that an appropriate adult is present at all meetings in relation to the authorisation which take place between the source and a person representing a relevant investigating authority, other than any such meeting in relation to which a relevant person decides there are circumstances which justify the absence of an appropriate adult, and

(ii)maintaining a record of the reasons for each such decision that there are circumstances in relation to a meeting which justify the absence of an appropriate adult.

(7)In subsection (6)—

and in this subsection, “guardian”, in relation to a juvenile source, has the same meaning as “guardian of a child” in the Children Act 1989 (see section 105 of that Act).

(8)No provision made by or under this section affects the power to make additional provision by order under section 29B(4)(c) or (10) in relation to the grant of a juvenile criminal conduct authorisation.]

Textual Amendments

F23S. 29C inserted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), ss. 2(1), 9(2); S.I. 2021/605, reg. 2(a)(b)(c)

[F2429DCriminal conduct authorisations: safeguards for vulnerable adultsU.K.

(1)This section applies in relation to the grant of a vulnerable adult criminal conduct authorisation.

(2)“A vulnerable adult criminal conduct authorisation” is an authorisation under section 29B for criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source where that source is a vulnerable adult (“the vulnerable adult source”).

(3)For the purposes of this section, a “vulnerable adult” is a person aged 18 or over who by reason of mental disorder or vulnerability, disability, age or illness, is or may be unable to take care of themselves or to protect themselves against significant harm or exploitation.

(4)In addition to satisfying the requirements of section 29B, a person may grant a vulnerable adult criminal conduct authorisation only if the person—

(a)has considered the results of an appropriate risk assessment;

(b)believes that the risks of harm identified by that risk assessment have been properly explained to and understood by the vulnerable adult source; and

(c)has taken into account the need to safeguard and promote the best interests of the vulnerable adult source.

(5)An appropriate risk assessment” means an assessment which—

(a)identifies and evaluates the nature and magnitude of the risks of harm to the vulnerable adult source arising in the course of, or as result of, the conduct authorised by the authorisation; and

(b)is carried out in accordance with provision made by the Secretary of State by regulations under this paragraph.

(6)For the purposes of subsections (3), (4)(b) and (5)(a), “harm” means—

(a)physical injury; or

(b)psychological distress.

(7)No provision made by or under this section affects the power to make additional provision by order under section 29B(4)(c) or (10) in relation to the grant of a vulnerable adult criminal conduct authorisation.]

Textual Amendments

F24S. 29D inserted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), ss. 3, 9(2); S.I. 2021/605, reg. 2(a)(b)(c)

30 Persons entitled to grant authorisations under ss. 28 [F25, 29 and 29B].U.K.

(1)Subject to subsection (3), the persons designated for the purposes of sections 28 [F26, 29 and 29B] are the individuals holding such offices, ranks or positions with relevant public authorities as are prescribed for the purposes of this subsection by an order under this section.

(2)For the purposes of the grant of an authorisation that combines—

(a)an authorisation under section 28 [F27, 29 or 29B], and

(b)an authorisation by the Secretary of State for the carrying out of intrusive surveillance,

the Secretary of State himself shall be a person designated for the purposes of that section.

(3)An order under this section may impose restrictions—

(a)on the authorisations under sections 28 [F28, 29 and 29B] that may be granted by any individual holding an office, rank or position with a specified public authority; and

(b)on the circumstances in which, or the purposes for which, such authorisations may be granted by any such individual.

(4)A public authority is a relevant public authority for the purposes of this section—

(a)in relation to section 28 if it is specified in Part [F29A1, 1 or 2] of Schedule 1; F30...

(b)in relation to section 29 if it is specified in Part [F31A1 or 1] of that Schedule [F32; and

(c)in relation to section 29B if it is specified in Part A1 of that Schedule]

(5)An order under this section may amend Schedule 1 by—

(a)adding a public authority to Part [F33A1, 1 or 2] of that Schedule;

(b)removing a public authority from that Schedule;

(c)moving a public authority from one Part of that Schedule to [F34another];

(d)making any change consequential on any change in the name of a public authority specified in that Schedule.

(6)Without prejudice to section 31, the power to make an order under this section shall be exercisable by the Secretary of State.

(7)The Secretary of State shall not make an order under subsection (5) containing any provision for—

(a)adding any public authority to Part [F35A1, 1 or 2] of that Schedule, or

(b)moving any public authority [F36from—

(i)Part 1 or 2 to Part A1 of that Schedule, or

(ii)Part 2 to Part 1 of that Schedule,]

unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

Textual Amendments

F25Words in s. 30 heading substituted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), ss. 4(2), 9(2); S.I. 2021/605, reg. 2(a)(b)(c)

F26Words in s. 30(1) substituted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), ss. 4(3), 9(2); S.I. 2021/605, reg. 2(a)(b)(c)

F27Words in s. 30(2)(a) substituted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), ss. 4(4), 9(2); S.I. 2021/605, reg. 2(a)(b)(c)

F28Words in s. 30(3)(a) substituted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), ss. 4(5), 9(2); S.I. 2021/605, reg. 2(a)(b)(c)

F29Words in s. 30(4)(a) substituted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), ss. 4(6)(a), 9(2); S.I. 2021/605, reg. 2(a)(b)(c)

F30Word in s. 30(4)(a) omitted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by virtue of Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), ss. 4(6)(b), 9(2); S.I. 2021/605, reg. 2(a)(b)(c)

F31Words in s. 30(4)(b) substituted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), ss. 4(6)(c), 9(2); S.I. 2021/605, reg. 2(a)(b)(c)

F32S. 30(4)(c) and word inserted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), ss. 4(6)(d), 9(2); S.I. 2021/605, reg. 2(a)(b)(c)

F33Words in s. 30(5)(a) substituted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), ss. 4(7)(a), 9(2); S.I. 2021/605, reg. 2(a)(b)(c)

F34Word in s. 30(5)(c) substituted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), ss. 4(7)(b), 9(2); S.I. 2021/605, reg. 2(a)(b)(c)

F35Words in s. 30(7)(a) substituted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), ss. 4(8)(a), 9(2); S.I. 2021/605, reg. 2(a)(b)(c)

F36Words in s. 30(7)(b) substituted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), ss. 4(8)(b), 9(2); S.I. 2021/605, reg. 2(a)(b)(c)

31 Orders under s. 30 for Northern Ireland.U.K.

(1)Subject to subsections (2) and (3), the power to make an order under section 30 for the purposes of the grant of authorisations [F37under section 28 or 29] for conduct in Northern Ireland shall be exercisable by the Office of the First Minister and deputy First Minister in Northern Ireland (concurrently with being exercisable by the Secretary of State).

(2)The power of the Office of the First Minister and deputy First Minister to make an order under section 30 by virtue of subsection (1) or (3) of that section shall not be exercisable in relation to any public authority other than—

(a)the Food Standards Agency;

F38(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)an authority added to Schedule 1 by an order made by that Office;

(d)an authority added to that Schedule by an order made by the Secretary of State which it would (apart from that order) have been within the powers of that Office to add to that Schedule for the purposes mentioned in subsection (1) of this section.

(3)The power of the Office of the First Minister and deputy First Minister to make an order under section 30—

(a)shall not include power to make any provision dealing with an excepted matter;

(b)shall not include power, except with the consent of the Secretary of State, to make any provision dealing with a reserved matter.

(4)The power of the Office of the First Minister and deputy First Minister to make an order under section 30 shall be exercisable by statutory rule for the purposes of the M3Statutory Rules (Northern Ireland) Order 1979.

(5)A statutory rule containing an order under section 30 which makes provision by virtue of subsection (5) of that section for—

(a)adding any public authority to Part I or II of Schedule 1, or

(b)moving any public authority from Part II to Part I of that Schedule,

shall be subject to affirmative resolution (within the meaning of section 41(4) of the M4Interpretation Act (Northern Ireland) 1954).

(6)A statutory rule containing an order under section 30 (other than one to which subsection (5) of this section applies) shall be subject to negative resolution (within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954).

(7)An order under section 30 made by the Office of the First Minister and deputy First Minister may—

(a)make different provision for different cases;

(b)contain such incidental, supplemental, consequential and transitional provision as that Office thinks fit.

(8)The reference in subsection (2) to an addition to Schedule 1 being within the powers of the Office of the First Minister and deputy First Minister includes a reference to its being within the powers exercisable by that Office with the consent for the purposes of subsection (3)(b) of the Secretary of State.

(9)In this section “excepted matter” and “reserved matter” have the same meanings as in the M5Northern Ireland Act 1998; and, in relation to those matters, section 98(2) of that Act (meaning of “deals with”) applies for the purposes of this section as it applies for the purposes of that Act.

Textual Amendments

F37Words in s. 31(1) inserted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), s. 9(2), Sch. para. 2; S.I. 2021/605, reg. 2(a)(b)(c)

F38S. 31(2)(b) repealed (15.11.2001) by S.I. 2001/3686, art. 6(17)(a) (with art. 8)

Marginal Citations

32 Authorisation of intrusive surveillance.U.K.

(1)Subject to the following provisions of this Part, the Secretary of State and each of the senior authorising officers shall have power to grant authorisations for the carrying out of intrusive surveillance.

(2)Neither the Secretary of State nor any senior authorising officer shall grant an authorisation for the carrying out of intrusive surveillance unless he believes—

(a)that the authorisation is necessary on grounds falling within subsection (3); and

(b)that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out.

(3)Subject to the following provisions of this section, an authorisation is necessary on grounds falling within this subsection if it is necessary—

(a)in the interests of national security;

(b)for the purpose of preventing or detecting serious crime; or

(c)in the interests of the economic well-being of the United Kingdom.

[F39(3A)In the case of an authorisation granted by the [F40chair of the CMA], the authorisation is necessary on grounds falling within subsection (3) only if it is necessary for the purpose of preventing or detecting an offence under section 188 of the Enterprise Act 2002 (cartel offence).]

(4)The matters to be taken into account in considering whether the requirements of subsection (2) are satisfied in the case of any authorisation shall include whether the information which it is thought necessary to obtain by the authorised conduct could reasonably be obtained by other means.

(5)The conduct that is authorised by an authorisation for the carrying out of intrusive surveillance is any conduct that—

(a)consists in the carrying out of intrusive surveillance of any such description as is specified in the authorisation;

(b)is carried out in relation to the residential premises specified or described in the authorisation or in relation to the private vehicle so specified or described; and

(c)is carried out for the purposes of, or in connection with, the investigation or operation so specified or described.

(6)For the purposes of this section the senior authorising officers are—

(a)the chief constable of every police force maintained under section 2 of the M6Police Act 1996 (police forces in England and Wales outside London);

(b)the Commissioner of Police of the Metropolis and every Assistant Commissioner of Police of the Metropolis;

(c)the Commissioner of Police for the City of London;

(d)the chief constable of [F41the Police Service of Scotland];

(e)the Chief Constable of the Royal Ulster Constabulary and the Deputy Chief Constable of the Royal Ulster Constabulary;

(f)the Chief Constable of the Ministry of Defence Police;

(g)the Provost Marshal of the [F42Royal Navy Police];

(h)the Provost Marshal of the Royal Military Police;

(i)the Provost Marshal of the Royal Air Force Police;

[F43(ia)the Provost Marshal for serious crime;]

(j)the Chief Constable of the British Transport Police;

[F44(k)the Director General of the National Crime Agency and any National Crime Agency officer who is designated for the purposes of this paragraph by that Director General;]

[F45(m)an officer of Revenue and Customs who is a senior official and who is designated for the purposes of this paragraph by the Commissioners for Her Majesty's Revenue F46... Customs;]

[F47(ma)a senior official in the department of the Secretary of State by whom functions relating to immigration are exercisable who is designated for the purposes of this paragraph by the Secretary of State; and]

(n)the [F48chair of the CMA].

Textual Amendments

F39S. 32(3A) inserted (20.6.2003) by 2002 c. 40, ss. 199(2)(a), 27; S.I. 2003/1397, art. 2(1), Sch.

F42Words in s. 32(6)(g) substituted (4.6.2007) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 170; S.I. 2007/1442, art. 2(1)

F46Word in s. 32(6)(m) omitted (25.6.2013) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 21 para. 6 (with Sch. 20 para. 29); S.I. 2013/1042, art. 4(i)

Modifications etc. (not altering text)

C13S. 32 modified (S.) (14.12.2000) by S.I. 2000/3253, arts. 1(1)(2), 2, Sch. 1 para. 4(1) (with art. 6)

C14S. 32: functions transferred to the Scottish Ministers (15.12.2000) by virtue of S.I. 2000/3253 arts. 1(1)(3), 3, Sch. 2 (with art. 6)

Marginal Citations

[F49Authorisations requiring judicial approval [F50or notification] U.K.

Textual Amendments

F49Ss. 32A, 32B and cross-heading inserted (1.11.2012) by Protection of Freedoms Act 2012 (c. 9), ss. 38(1), 120 (with s. 97); S.I. 2012/2075, art. 4(b) (with art. 6)

F50Words in s. 32A cross-heading inserted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), s. 9(2), Sch. para. 3; S.I. 2021/605, reg. 2(a)(b)(c)

32AAuthorisations requiring judicial approvalU.K.

(1)This section applies where a relevant person has granted an authorisation under section 28 or 29.

(2)The authorisation is not to take effect until such time (if any) as the relevant judicial authority has made an order approving the grant of the authorisation.

(3)The relevant judicial authority may give approval under this section to the granting of an authorisation under section 28 if, and only if, the relevant judicial authority is satisfied that—

(a)at the time of the grant—

(i)there were reasonable grounds for believing that the requirements of section 28(2) were satisfied in relation to the authorisation, and

(ii)the relevant conditions were satisfied in relation to the authorisation, and

(b)at the time when the relevant judicial authority is considering the matter, there remain reasonable grounds for believing that the requirements of section 28(2) are satisfied in relation to the authorisation.

(4)For the purposes of subsection (3) the relevant conditions are—

(a)in relation to a grant by an individual holding an office, rank or position in a local authority in England or Wales, that—

(i)the individual was a designated person for the purposes of section 28,

(ii)the grant of the authorisation was not in breach of any restrictions imposed by virtue of section 30(3), and

(iii)any other conditions that may be provided for by an order made by the Secretary of State were satisfied,

(b)in relation to a grant, for any purpose relating to a Northern Ireland excepted or reserved matter, by an individual holding an office, rank or position in a district council in Northern Ireland, that—

(i)the individual was a designated person for the purposes of section 28,

(ii)the grant of the authorisation was not in breach of any restrictions imposed by virtue of section 30(3), and

(iii)any other conditions that may be provided for by an order made by the Secretary of State were satisfied, and

(c)in relation to any other grant by a relevant person, that any conditions that may be provided for by an order made by the Secretary of State were satisfied.

(5)The relevant judicial authority may give approval under this section to the granting of an authorisation under section 29 if, and only if, the relevant judicial authority is satisfied that—

(a)at the time of the grant—

(i)there were reasonable grounds for believing that the requirements of section 29(2), and any requirements imposed by virtue of section 29(7)(b), were satisfied in relation to the authorisation, and

(ii)the relevant conditions were satisfied in relation to the authorisation, and

(b)at the time when the relevant judicial authority is considering the matter, there remain reasonable grounds for believing that the requirements of section 29(2), and any requirements imposed by virtue of section 29(7)(b), are satisfied in relation to the authorisation.

(6)For the purposes of subsection (5) the relevant conditions are—

(a)in relation to a grant by an individual holding an office, rank or position in a local authority in England or Wales, that—

(i)the individual was a designated person for the purposes of section 29,

(ii)the grant of the authorisation was not in breach of any prohibition imposed by virtue of section 29(7)(a) or any restriction imposed by virtue of section 30(3), and

(iii)any other conditions that may be provided for by an order made by the Secretary of State were satisfied,

(b)in relation to a grant, for any purpose relating to a Northern Ireland excepted or reserved matter, by an individual holding an office, rank or position in a district council in Northern Ireland, that—

(i)the individual was a designated person for the purposes of section 29,

(ii)the grant of the authorisation was not in breach of any prohibition imposed by virtue of section 29(7)(a) or any restriction imposed by virtue of section 30(3), and

(iii)any other conditions that may be provided for by an order made by the Secretary of State were satisfied, and

(c)in relation to any other grant by a relevant person, that any conditions that may be provided for by an order made by the Secretary of State were satisfied.

(7)In this section—

(8)No order of the Secretary of State—

(a)may be made under subsection (7) unless a draft of the order has been laid before Parliament and approved by a resolution of each House;

(b)may be made under this section so far as it makes provision which would be within the legislative competence of the Scottish Parliament if it were contained in an Act of the Scottish Parliament;

(c)may be made under this section so far as it makes provision which, if it were contained in an Act of the Northern Ireland Assembly, would be within the legislative competence of the Northern Ireland Assembly and would deal with a Northern Ireland transferred matter.

32BProcedure for judicial approvalU.K.

(1)The public authority with which the relevant person holds an office, rank or position may apply to the relevant judicial authority for an order under section 32A approving the grant of an authorisation.

(2)The applicant is not required to give notice of the application to—

(a)any person to whom the authorisation relates, or

(b)such a person's legal representatives.

(3)Where, on an application under this section, the relevant judicial authority refuses to approve the grant of the authorisation concerned, the relevant judicial authority may make an order quashing the authorisation.

(4) In this section “ relevant judicial authority ” and “ relevant person ” have the same meaning as in section 32A. ]

[F5132CNotification of criminal conduct authorisationsU.K.

(1)This section applies where a person grants or cancels an authorisation under section 29B.

(2)The person must give notice that the person has granted or cancelled the authorisation to a Judicial Commissioner.

(3)A notice given for the purposes of subsection (2) must be given—

(a)in writing as soon as reasonably practicable and, in any event, before the end of the period of 7 days beginning with the day after that on which the authorisation to which it relates is granted or, as the case may be, cancelled; and

(b)in accordance with such arrangements made for the purposes of this paragraph by the Investigatory Powers Commissioner as are for the time being in force.

(4)A notice under this section relating to the grant of an authorisation under section 29B must—

(a)set out the grounds on which the person giving the notice believes that the requirements of section 29B(4) are satisfied in relation to the authorisation; and

(b)specify the conduct that is authorised under section 29B by the authorisation.

(5)Any notice that is required by this section to be given in writing may be given, instead, by being transmitted by electronic means.]

Textual Amendments

F51S. 32C inserted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), ss. 6, 9(2); S.I. 2021/605, reg. 2(a)(b)(c)

Police and [F52Revenue and Customs] authorisationsU.K.

Textual Amendments

F52Words in cross-heading before s. 33 substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 11; S.I. 2008/219, art. 2(b)

33Rules for grant of authorisations.U.K.

(1)A person who is a designated person for the purposes of section 28 [F53, 29 or 29B] by reference to his office, rank or position with a police force F54. . . shall not grant an authorisation under that section except on an application made by a member of the same force F55. . . [F56 (subject to [F57subsection (1ZB)] [F58 and section 33A ])].

[F59(1ZZA)A person who is a designated person for the purposes of section 28, 29 or 29B by reference to the person’s office, rank or position with the tri-service serious crime unit must not grant an authorisation under that section except on an application made by a member of that unit.]

[F60(1ZA)Subsection (1ZB) applies if the chief officer of police of a police force (“the authorising force”) has made an agreement under section [F61 22A ] of the Police Act 1996 with the chief office of police of one or more other police forces.

(1ZB)A person who is a designated person for the purposes of section 28 [F62, 29 or 29B] by reference to an office, rank or position with the authorising force may grant an authorisation under that section on an application made by a member of a collaborative force.

(1ZC)For the purposes of subsection (1ZB) a police force is a collaborative force if—

(a)its chief officer of police is a party to the agreement mentioned in subsection (1ZA); and

(b)its members are permitted by the terms of the agreement to make applications for authorisations under section 28 [F63, 29 or 29B] to a person who is a designated person for the purposes of that section by reference to an office, rank or position with the authorising force.

F64(1ZD). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F64(1ZE). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F64(1ZF). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

[F65(1A)A person who is a designated person for the purposes of section 28 [F66, 29 or 29B] by reference to his office or position with the [F67National Crime Agency] shall not grant an authorisation under that section except on an application made by a member of the staff of the Agency [F68 (subject to section 33A) ].]

F69(1B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F70(2)A person who is a designated person for the purposes of section 28 [F71, 29 or 29B] by reference to office, rank or position in Her Majesty's Revenue and Customs shall not grant an authorisation under that section except on an application made by an officer of Revenue and Customs.]

(3)[F72Subject to [F73subsection (3ZB)] [F74 and section 33A ],] A person who is a senior authorising officer by reference to a police force F75. . . shall not grant an authorisation for the carrying out of intrusive surveillance except—

(a)on an application made by a member of the same force F76. . . ; and

(b)in the case of an authorisation for the carrying out of intrusive surveillance in relation to any residential premises, where those premises are in the area of operation of that force F76. . . .

[F77(3ZZA)The Provost Marshal for serious crime must not grant an authorisation for the carrying out of intrusive surveillance except—

(a)on an application made by a member of the tri-service serious crime unit; and

(b)in the case of an authorisation for the carrying out of intrusive surveillance in relation to any residential premises, where those premises are in the area of operation of a police force mentioned in subsection (6)(d).]

[F78(3ZA)Subsection (3ZB) applies if—

(a)the chief officer of police of a police force (“the surveillance authorising force”) has made an agreement under section [F7922A] of the Police Act 1996 with the chief office of police of one or more other police forces; and

(b)an application for an authorisation for the carrying out of intrusive surveillance is made by a member of a collaborative force.

(3ZB)A person who is a senior authorising officer by reference to the surveillance authorising force may—

(a)grant the authorisation;

(b)in a case where the authorisation is for the carrying out of intrusive surveillance in relation to any residential premises, grant the authorisation only in relation to premises in the area which is—

(i)the area of operation of a collaborative force; and

(ii)specified in relation to members of that force in the agreement mentioned in subsection (3ZA).

(3ZC)For the purposes of subsections (3ZA) and (3ZB) a police force is a collaborative force if—

(a)its chief officer of police is a party to the agreement mentioned in subsection (3ZA); and

(b)its members are permitted by the terms of the agreement to make applications for authorisations for the carrying out of intrusive surveillance to a person who is a senior authorising officer by reference to the surveillance authorising force.

F80(3ZD). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F80(3ZE). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F80(3ZF). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

[F81(3A)[F82The Director General of the National Crime Agency] or a person designated for the purposes of section 32(6)(k) by that Director General shall not grant an authorisation for the carrying out of intrusive surveillance except on an application made by a [F83National Crime Agency officer] [F84 (subject to section 33A) ].]

[F85(4)A person who is a senior authorising officer by virtue of a designation by the Commissioners for Her Majesty's Revenue and Customs shall not grant an authorisation for the carrying out of intrusive surveillance except on an application made by an officer of Revenue and Customs.]

[F86(4A)The [F87chair of the CMA] shall not grant an authorisation for the carrying out of intrusive surveillance except on an application made by an officer of the [F88CMA].]

[F89(4ZA)A senior official who is a senior authorising officer by virtue of a designation by the Secretary of State under section 32(6)(ma) shall not grant an authorisation for the carrying out of intrusive surveillance except on an application made by an immigration officer.]

(5)A single authorisation may combine both—

(a)an authorisation granted under this Part by, or on the application of, an individual who is a member of a police force, [F90a [F91National Crime Agency officer] F92...,] or who is [F93an officer of Revenue and Customs [F94, an immigration officer]] [F95or the chair or an officer of the CMA]; and

(b)an authorisation given by, or on the application of, that individual under Part III of the M7Police Act 1997;

but the provisions of this Act or that Act that are applicable in the case of each of the authorisations shall apply separately in relation to the part of the combined authorisation to which they are applicable.

[F96(5A)In subsections (1ZA) to (1ZC) and (3ZA) to (3ZC) a reference to a police force is to the following—

(a)any police force maintained under section 2 of the Police Act 1996 (police forces in England and Wales outside London);

(b)the metropolitan police force; and

(c)the City of London police force.

F97(5B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(6)For the purposes of this section—

(a)the area of operation of a police force maintained under section 2 of the M8Police Act 1996, of the metropolitan police force [F98or], of the City of London police force F99... is the area for which that force is maintained;

[F100(aa)the area of operation of the Police Service of Scotland is Scotland;]

(b)the area of operation of the Royal Ulster Constabulary is Northern Ireland;

(c)residential premises are in the area of operation of the Ministry of Defence Police if they are premises where the members of that police force, under section 2 of the M9Ministry of Defence Police Act 1987, have the powers and privileges of a constable;

(d)residential premises are in the area of operation of the [F101Royal Navy Police] the Royal Military Police or the Royal Air Force Police if they are premises owned or occupied by, or used for residential purposes by, a person subject to service discipline;

(e)the area of operation of the British Transport Police F102. . . is the United Kingdom;

F103(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

and references in this section to the United Kingdom or to any part or area of the United Kingdom include any adjacent waters within the seaward limits of the territorial waters of the United Kingdom.

[F104(7) In subsection (6) “subject to service law” and “civilian subject to service discipline” have the same meanings as in the Armed Forces Act 2006.]

Textual Amendments

F53Words in s. 33(1) substituted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), s. 9(2), Sch. para. 4(2); S.I. 2021/605, reg. 2(a)(b)(c)

F56Words in s. 33(1) inserted (25.1.2010) by Policing and Crime Act 2009 (c. 26), ss. 9(2), 116; S.I. 2009/3096, art. 3(d)

F58Words in s. 33(1) inserted (31.1.2017 for specified purposes, 31.3.2017 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), s. 183(5)(e)(6)(b), Sch. 19 para. 5(2)

F60S. 33(1ZA)-(1ZF) inserted (25.1.2010) by Policing and Crime Act 2009 (c. 26), ss. 9(3), 116; S.I. 2009/3096, art. 3(d)

F61Word in s. 33(1ZA) substituted (31.1.2017 for specified purposes, 31.3.2017 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), s. 183(5)(e)(6)(b), Sch. 19 para. 5(3)

F62Words in s. 33(1ZB) substituted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), s. 9(2), Sch. para. 4(3); S.I. 2021/605, reg. 2(a)(b)(c)

F63Words in s. 33(1ZC)(b) substituted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), s. 9(2), Sch. para. 4(4); S.I. 2021/605, reg. 2(a)(b)(c)

F66Words in s. 33(1A) substituted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), s. 9(2), Sch. para. 4(5); S.I. 2021/605, reg. 2(a)(b)(c)

F68Words in s. 33(1A) inserted (31.1.2017 for specified purposes, 31.3.2017 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), s. 183(5)(e)(6)(b), Sch. 19 para. 5(4)

F71Words in s. 33(2) substituted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), s. 9(2), Sch. para. 4(6); S.I. 2021/605, reg. 2(a)(b)(c)

F72Words in s. 33(3) inserted (25.1.2010) by Policing and Crime Act 2009 (c. 26), ss. 9(4), 116; S.I. 2009/3096, art. 3(d)

F74Words in s. 33(3) inserted (31.1.2017 for specified purposes, 31.3.2017 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), s. 183(5)(e)(6)(b), Sch. 19 para. 5(5)

F78S. 33(3ZA)-(3ZF) inserted (25.1.2010) by Policing and Crime Act 2009 (c. 26), ss. 9(5), 116; S.I. 2009/3096, art. 3(d)

F79Word in s. 33(3ZA)(a) substituted (31.1.2017 for specified purposes, 31.3.2017 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), s. 183(5)(e)(6)(b), Sch. 19 para. 5(6)

F84Words in s. 33(3A) inserted (31.1.2017 for specified purposes, 31.3.2017 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), s. 183(5)(e)(6)(b), Sch. 19 para. 5(7)

F86S. 33(4A) inserted (20.6.2003) by 2002 c. 40, ss. 199(3), 279; S.I. 2003/1397, art. 2(1), Sch.

F93Words in s. 33(5)(a) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 11(c); S.I. 2008/219, art. 2(b)

F104S. 33(7) substituted (28.3.2009 for certain purposes otherwise 31.10.2009) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 171(3); S.I. 2009/812, art. 3 (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

Marginal Citations

[F10533ASection 33: further provision in cases where NCA is party to collaboration agreementU.K.

(1)This section applies where the Director General of the National Crime Agency has made a collaboration agreement with the chief officer of police of one or more police forces (a “collaborative police force”).

(2)A person who is a designated person for the purposes of section 28 [F106, 29 or 29B] by reference to an office, rank or position with a collaborative police force may grant an authorisation under that section on an application made by a National Crime Agency officer.

(3)A person who is a designated person for the purposes of section 28 [F107, 29 or 29B] by reference to their position as a National Crime Agency officer may grant an authorisation under that section on an application made by a member of a collaborative police force.

(4)Authorisations may be granted to persons by virtue of subsection (2) or (3) only if such persons are permitted under the terms of the collaboration agreement to make applications for authorisations under section 28 [F108, 29 or 29B] to a person who is a designated person for the purposes of that section—

(a)in the case of authorisations granted by virtue of subsection (2), by reference to an office, rank or position with the collaborative police force concerned, or

(b)in the case of authorisations granted by virtue of subsection (3), by reference to the person's position as a National Crime Agency officer.

(5)A person who is a senior authorising officer by reference to a collaborative police force may grant an authorisation for the carrying out of intrusive surveillance on an application made by a National Crime Agency officer.

(6)The Director General of the National Crime Agency, or a person designated for the purposes of section 32(6)(k) by that Director General, may grant an authorisation for the carrying out of intrusive surveillance on an application made by a member of a collaborative police force.

(7)Authorisations may be granted to persons by virtue of subsection (5) or (6) only if such persons are permitted under the terms of the collaboration agreement to make applications for authorisations for the carrying out of intrusive surveillance to a person who—

(a)in the case of authorisations granted by virtue of subsection (5), is a senior authorising officer by reference to the collaborative police force concerned, or

(b)in the case of authorisations granted by virtue of subsection (6), is the Director General of the National Crime Agency or a person designated for the purposes of section 32(6)(k) by that Director General.

(8)In the case of an application made by virtue of subsection (5) or (6) for the carrying out of intrusive surveillance in relation to any residential premises, authorisation may be granted only in relation to premises in the area which is—

(a)the area of operation of a collaborative police force, and

(b)specified in relation to members of that force in the collaboration agreement.

(9)For the purposes of this section the area of operation of a collaborative police force is the area for which that force is maintained.

(10)In this section—

Textual Amendments

F105S. 33A inserted (31.1.2017 for specified purposes, 31.3.2017 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), s. 183(5)(e)(6)(b), Sch. 19 para. 6

F106Words in s. 33A(2) substituted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), s. 9(2), Sch. para. 5(2); S.I. 2021/605, reg. 2(a)(b)(c)

F107Words in s. 33A(3) substituted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), s. 9(2), Sch. para. 5(3); S.I. 2021/605, reg. 2(a)(b)(c)

F108Words in s. 33A(4) substituted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), s. 9(2), Sch. para. 5(4); S.I. 2021/605, reg. 2(a)(b)(c)

34 Grant of authorisations in the senior officer’s absence.U.K.

(1)This section applies in the case of an application for an authorisation for the carrying out of intrusive surveillance where—

(a)the application is one made by a member of a police [F109force] [F109force (other than a member of the tri-service serious crime unit), a member of the tri-service serious crime unit,] [F110a [F111National Crime Agency officer]] or by [F112[F113an officer of the CMA] or] [F114an officer of Revenue and Customs [F115or an immigration officer];] and

(b)the case is urgent.

(2)If —

(a)it is not reasonably practicable, having regard to the urgency of the case, for the application to be considered by any person who is a senior authorising officer by reference to the force [F116or Agency] in question or, as the case may be, [F117as [F118Provost Marshal for serious crime or] the chair of the CMA or] by virtue of a designation by [F119the Commissioners for Her Majesty's Revenue and Customs [F120or the Secretary of State],] and

(b)it also not reasonably practicable, having regard to the urgency of the case, for the application to be considered by a person (if there is one) who is entitled, as a designated deputy of a senior authorising officer, to exercise the functions in relation to that application of such an officer,

the application may be made to and considered by any person who is entitled under subsection (4) to act for any senior authorising officer who would have been entitled to consider the application.

(3)A person who considers an application under subsection (1) shall have the same power to grant an authorisation as the person for whom he is entitled to act.

(4)For the purposes of this section—

(a)a person is entitled to act for the chief constable of a police force maintained under section 2 of the M10Police Act 1996 if he holds the rank of assistant chief constable in that force;

(b)a person is entitled to act for the Commissioner of Police of the Metropolis, or for an Assistant Commissioner of Police of the Metropolis, if he holds the rank of commander in the metropolitan police force;

(c)a person is entitled to act for the Commissioner of Police for the City of London if he holds the rank of commander in the City of London police force;

(d)a person is entitled to act for the chief constable of [F121the Police Service of Scotland if he holds the rank of deputy or assistant chief constable of the Police Service of Scotland];

(e)a person is entitled to act for the Chief Constable of the Royal Ulster Constabulary, or for the Deputy Chief Constable of the Royal Ulster Constabulary, if he holds the rank of assistant chief constable in the Royal Ulster Constabulary;

(f)a person is entitled to act for the Chief Constable of the Ministry of Defence Police if he holds the rank of deputy or assistant chief constable in that force;

(g)a person is entitled to act for the Provost Marshal of the [F122Royal Navy Police] if he holds the position of assistant Provost Marshal in [F123that force];

(h)a person is entitled to act for the Provost Marshal of the Royal Military Police or the Provost Marshal of the Royal Air Force Police if he holds the position of deputy Provost Marshal in the police force in question;

[F124(ha)a person is entitled to act for the Provost Marshal for serious crime if the person holds the position of deputy Provost Marshal in the tri-service serious crime unit;]

(i)a person is entitled to act for the Chief Constable of the British Transport Police if he holds the rank of deputy or assistant chief constable in that force;

[F125(j)a person is entitled to act for the [F126Director General of the National Crime Agency] if he is a person designated for the purposes of this paragraph by that Director General as a person entitled so to act in an urgent case;]

(l)a person is entitled to act for a person who is a senior authorising officer by virtue of a designation by [F127the Commissioners for Her Majesty's Revenue and Customs,] if he is [F128a senior official] designated for the purposes of this paragraph by those Commissioners as a person entitled so to act in an urgent case.

[F129(la)a person is entitled to act for a person who is a senior authorising officer by virtue of a designation under section 32(6)(ma), if the person is a senior official in the department of the Secretary of State by whom functions relating to immigration are exercisable who is designated for the purposes of this paragraph by the Secretary of State as a person entitled so to act in an urgent case;]

[F130(m)a person is entitled to act for the [F131chair of the CMA if he is an officer of the CMA] designated by it for the purposes of this paragraph as a person entitled so to act in an urgent case.]

F132(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)In this section “designated deputy”—

[F133(a)in relation to the chief constable for a police force in England and Wales, means—

(i)the person who is the appropriate deputy chief constable for the purposes of section 12A(1) of the Police Act 1996, or

(ii)a person holding the rank of assistant chief constable who is designated to act under section 12A(2) of that Act;

(aa)in relation to the chief constable [F134of the Police Service of Scotland, means the deputy chief constable designated under section 18(3) of the Police and Fire Reform (Scotland) Act 2012;]

(i)a person holding the rank of deputy chief constable and, where there is more than one person in the police force who holds that rank, who is designated as the officer having the powers and duties conferred on a deputy chief constable by section 5A(1) of the Police (Scotland) Act 1967, or

(ii)a person holding the rank of assistant chief constable who is designated to act under section 5A(2) of that Act;]

(b)in relation to the Commissioner of Police for the City of London, means a person authorised to act under section 25 of the M11City of London Police Act 1839;

F135(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F109Words in s. 34(1)(a) substituted (1.5.2022 for specified purposes) by Armed Forces Act 2021 (c. 35), s. 24(1), Sch. 5 para. 16(2); S.I. 2022/471, reg. 2(e)

F112Words in s. 34(1)(a) inserted (20.6.2003) by 2002 c. 40, ss. 199(5)(a), 279; S.I. 2003/1397, art. 2(1), Sch.

F118Words in s. 34(2)(a) inserted (1.5.2022 for specified purposes) by Armed Forces Act 2021 (c. 35), s. 24(1), Sch. 5 para. 16(3); S.I. 2022/471, reg. 2(e)

F119Words in s. 34(2)(a) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 12(b); S.I. 2008/219, art. 2(b)

F127Words in s. 34(4)(l) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 12(c)(i); S.I. 2008/219, art. 2(b)

F130S. 34(4)(m) inserted (20.6.2003) by 2002 c. 40, ss. 199(5)(c), 279; S.I. 2003/1397, art. 2(1), Sch.

F133S. 34(6)(a)(aa) substituted (8.11.2006) for s. 34(6)(a) by Police and Justice Act 2006 (c. 48), ss. 52, 53, Sch. 14 para. 39

Marginal Citations

35 Notification of authorisations for intrusive surveillance.U.K.

(1)Where a person grants or cancels a [F136police, [F137tri-service serious crime unit,] [F138the National Crime Agency], [F139Revenue and Customs [F140, immigration]]] [F141or CMA] authorisation for the carrying out of intrusive surveillance, he shall give notice that he has done so to [F142a Judicial Commissioner] .

(2)A notice given for the purposes of subsection (1)—

(a)must be given in writing as soon as reasonably practicable after the grant or, as the case may be, cancellation of the authorisation to which it relates;

(b)must be given in accordance with any such arrangements made for the purposes of this paragraph by the [F143Investigatory Powers Commissioner] as are for the time being in force; and

(c)must specify such matters as the Secretary of State may by order prescribe.

(3)A notice under this section of the grant of an authorisation shall, as the case may be, either—

(a)state that the approval of a [F144Judicial Commissioner] is required by section 36 before the grant of the authorisation will take effect; or

(b)state that the case is one of urgency and set out the grounds on which the case is believed to be one of urgency.

(4)Where a notice for the purposes of subsection (1) of the grant of an authorisation has been received by [F145a Judicial Commissioner ] , he shall, as soon as practicable—

(a)scrutinise the authorisation; and

(b)in a case where notice has been given in accordance with subsection (3)(a), decide whether or not to approve the authorisation.

(5)Subject to subsection (6), the Secretary of State shall not make an order under subsection (2)(c) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(6)Subsection (5) does not apply in the case of the order made on the first occasion on which the Secretary of State exercises his power to make an order under subsection (2)(c).

(7)The order made on that occasion shall cease to have effect at the end of the period of forty days beginning with the day on which it was made unless, before the end of that period, it has been approved by a resolution of each House of Parliament.

(8)For the purposes of subsection (7)—

(a)the order’s ceasing to have effect shall be without prejudice to anything previously done or to the making of a new order; and

(b)in reckoning the period of forty days no account shall be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

(9)Any notice that is required by any provision of this section to be given in writing may be given, instead, by being transmitted by electronic means.

(10)In this section references to a [F146police, [F147tri-service serious crime unit,] [F148the National Crime Agency], [F149Revenue and Customs [F150 immigration]]] [F151or CMA] authorisation are references to an authorisation granted by—

(a)a person who is a senior authorising officer by reference to a police force [F152or the [F153National Crime Agency]];

[F154(aa)the Provost Marshal for serious crime;]

(b)a person who is a senior authorising officer by virtue of a designation [F155under section 32(6)(m) or (ma)]; F156...

[F157(ba)the chair of the CMA; or]

(c)a person who for the purposes of section 34 is entitled to act for a person falling within paragraph (a) [F158or for a person falling within paragraph (aa)] or for a person falling within paragraph (b) [F159or for a person falling within paragraph (ba)].

Textual Amendments

F137Words in s. 35(1) inserted (1.5.2022 for specified purposes) by Armed Forces Act 2021 (c. 35), s. 24(1), Sch. 5 para. 17(2); S.I. 2022/471, reg. 2(e)

F143Words in s. 35(2)(b) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(b), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F144Words in s. 35(3)(a) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(c), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F147Words in s. 35(10) inserted (1.5.2022 for specified purposes) by Armed Forces Act 2021 (c. 35), s. 24(1), Sch. 5 para. 17(3)(a); S.I. 2022/471, reg. 2(e)

F149Words in s. 35(10) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 13(b); S.I. 2008/219, art. 2(b)

F156Word in s. 35(10)(b) repealed (20.6.2003) by 2002 c. 40, ss. 278, 279, Sch. 26; S.I. 2003/1397, art. 2(1), Sch. (with art. 10)

F158Words in s. 35(10)(c) inserted (1.5.2022 for specified purposes) by Armed Forces Act 2021 (c. 35), s. 24(1), Sch. 5 para. 17(3)(c); S.I. 2022/471, reg. 2(e)

F159Words in s. 35(10)(c) inserted (20.6.2003) by 2002 c. 40, ss. 199(6)(c), 279; S.I. 2003/1397, art. 2(1), Sch.

Modifications etc. (not altering text)

36 Approval required for authorisations to take effect.U.K.

(1)This section applies where an authorisation for the carrying out of intrusive surveillance has been granted on the application of—

(a)a member of a police force;

[F160(aa)a member of the tri-service serious crime unit;]

[F161(b)a National Crime Agency officer;]

[F162(d)an officer of Revenue and Customs F163...;]

[F164(da)an immigration officer; or]

(e)[F165an officer of the CMA].

(2)Subject to subsection (3), the authorisation shall not take effect until such time (if any) as—

(a)the grant of the authorisation has been approved by [F166a Judicial Commissioner] ; and

(b)written notice of the Commissioner’s decision to approve the grant of the authorisation has been given, in accordance with subsection (4), to the person who granted the authorisation.

(3)Where the person who grants the authorisation—

(a)believes that the case is one of urgency, and

(b)gives notice in accordance with section 35(3)(b),

subsection (2) shall not apply to the authorisation, and the authorisation shall have effect from the time of its grant.

(4)Where subsection (2) applies to the authorisation—

(a)a [F167Judicial Commissioner] shall give his approval under this section to the authorisation if, and only if, he is satisfied that there are reasonable grounds for believing that the requirements of section 32(2)(a) and (b) are satisfied in the case of the authorisation; and

(b)a [F167Judicial Commissioner ] who makes a decision as to whether or not the authorisation should be approved shall, as soon as reasonably practicable after making that decision, give written notice of his decision to the person who granted the authorisation.

(5)If [F168a Judicial Commissioner] decides not to approve an authorisation to which subsection (2) applies, he shall make a report of his findings to the most senior relevant person.

(6)In this section “the most senior relevant person” means—

(a)where the authorisation was granted by the senior authorising officer with any police force who is not someone’s deputy, that senior authorising officer;

[F169(aa)where the authorisation was granted by the Provost Marshal for serious crime or a person entitled to act for the Provost Marshal for serious crime by virtue of section 34(4)(ha), that Provost Marshal;]

(b)where the authorisation was granted by the [F170Director General of the National Crime Agency], that Director General;

(c)where the authorisation was granted by a senior authorising officer with a police force who is someone’s deputy, the senior authorising officer whose deputy granted the authorisation;

[F171(d)where the authorisation was granted by a person designated for the purposes of section 32(6)(k), or by a person entitled to act for the [F172Director General of the National Crime Agency] by virtue of section 34(4)(j), that Director General;]

(f)where the authorisation was granted by a person entitled to act for a senior authorising officer under section 34(4)[F173(a) to (i)] [F173(a) to (h) or (i)], the senior authorising officer in the force in question who is not someone’s deputy; [F174and]

[F175(g)where the authorisation was granted by an officer of Revenue and Customs, the officer of Revenue and Customs for the time being designated for the purposes of this paragraph by a written notice given to the [F176Investigatory Powers Commissioner ] by the Commissioners for Her Majesty's Revenue F177... Customs;]

[F178(ga)where the authorisation was granted by a senior official designated under section 32(6)(ma) or entitled to act for such an official under section 34(4)(la), the senior official designated under section 32(6)(ma); and]

(h)where the authorisation was granted by the [F179chair of the CMA] or a person entitled to act for [F180the chair of the CMA] by virtue of section 34(4)(m), [F181that chair].

(7)The references in subsection (6) to a person’s deputy are references to the following—

(a)in relation to—

(i)a chief constable of a police force maintained under section 2 of the M12Police Act 1996,

(ii)the Commissioner of Police for the City of London, or

[F182(iii)the chief constable of the Police Service of Scotland,]

to his designated deputy;

(b)in relation to the Commissioner of Police of the Metropolis, to an Assistant Commissioner of Police of the Metropolis; and

(c)in relation to the Chief Constable of the Royal Ulster Constabulary, to the Deputy Chief Constable of the Royal Ulster Constabulary;

and in this subsection and that subsection “designated deputy” has the same meaning as in section 34.

(8)Any notice that is required by any provision of this section to be given in writing may be given, instead, by being transmitted by electronic means.

Textual Amendments

F166Words in s. 36(2)(a) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(a), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F167Words in s. 36(4)(a)(b) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(c), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F173Words in s. 36(6)(f) substituted (1.5.2022 for specified purposes) by Armed Forces Act 2021 (c. 35), s. 24(1), Sch. 5 para. 18(3)(b); S.I. 2022/471, reg. 2(e)

F174Word in s. 36(6)(f) repealed (20.6.2003) by 2002 c. 40, ss. 278, 279, Sch. 26; S.I. 2003/1397, art. 2(1), Sch. (with art. 10)

F176Words in s. 36(6)(g) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(b), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

Modifications etc. (not altering text)

Marginal Citations

37 Quashing of police and [F183Revenue and Customs] authorisations etc.U.K.

(1)This section applies where an authorisation for the carrying out of intrusive surveillance has been granted on the application of—

(a)a member of a police force;

[F184(b)a National Crime Agency officer;]

[F185(d)an officer of Revenue and Customs F186... ;]

[F187(da)an immigration officer; or]

[F188(e)an officer of the CMA.]

(2)Where [F189a Judicial Commissioner] is at any time satisfied that, at the time when the authorisation was granted or at any time when it was renewed, there were no reasonable grounds for believing that the requirements of section 32(2)(a) and (b) were satisfied, he may quash the authorisation with effect, as he thinks fit, from the time of the grant of the authorisation or from the time of any renewal of the authorisation.

(3)If [F189a Judicial Commissioner] is satisfied at any time while the authorisation is in force that there are no longer any reasonable grounds for believing that the requirements of section 32(2)(a) and (b) are satisfied in relation to the authorisation, he may cancel the authorisation with effect from such time as appears to him to be the time from which those requirements ceased to be so satisfied.

(4)Where, in the case of any authorisation of which notice has been given in accordance with section 35(3)(b), [F189a Judicial Commissioner] is at any time satisfied that, at the time of the grant or renewal of the authorisation to which that notice related, there were no reasonable grounds for believing that the case was one of urgency, he may quash the authorisation with effect, as he thinks fit, from the time of the grant of the authorisation or from the time of any renewal of the authorisatio

(5)Subject to subsection (7), where [F189a Judicial Commissioner ] quashes an authorisation under this section, he may order the destruction of any records relating wholly or partly to information obtained by the authorised conduct after the time from which his decision takes effect.

(6)Subject to subsection (7), where—

(a)an authorisation has ceased to have effect (otherwise than by virtue of subsection (2) or (4)), and

(b)[F189a Judicial Commissioner] is satisfied that there was a time while the authorisation was in force when there were no reasonable grounds for believing that the requirements of section 32(2)(a) and (b) continued to be satisfied in relation to the authorisation,

he may order the destruction of any records relating, wholly or partly, to information obtained at such a time by the authorised conduct.

(7)No order shall be made under this section for the destruction of any records required for pending criminal or civil proceedings.

(8)Where [F190a Judicial Commissioner] exercises a power conferred by this section, he shall, as soon as reasonably practicable, make a report of his exercise of that power, and of his reasons for doing so—

(a)to the most senior relevant person (within the meaning of section 36); and

(b)to the [F191Investigatory Powers Commissioner (if he is not that Commissioner)] .

(9)Where an order for the destruction of records is made under this section, the order shall not become operative until such time (if any) as—

(a)[F192any period] for appealing against the decision to make the order has expired; and

(b)any appeal brought within that period has been dismissed by the [F193Investigatory Powers Commissioner] .

(10)No notice shall be required to be given under section 35(1) in the case of a cancellation under subsection (3) of this section.

Textual Amendments

F183Words in s. 37 heading substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 15; S.I. 2008/219, art. 2(b)

F186Word in s. 37(1)(d) omitted (25.6.2013) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 21 para. 11(a) (with Sch. 21 para. 40); S.I. 2013/1042, art. 4(i)

F189Words in s. 37(2)-(6) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(a), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F191Words in s. 37(8)(b) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(d), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F193Words in s. 37(9)(b) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(b), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

Modifications etc. (not altering text)

38 Appeals against decisions by [F194Judicial Commissioners] .U.K.

(1)Any senior authorising officer may appeal to the [F195Investigatory Powers Commissioner] against any of the following—

(a)any refusal of [F196a Judicial Commissioner (other than the Investigatory Powers Commissioner)] to approve an authorisation for the carrying out of intrusive surveillance;

(b)any decision of such a Commissioner to quash or cancel such an authorisation;

(c)any decision of such a Commissioner to make an order under section 37 for the destruction of records.

(2)In the case of an authorisation granted by the designated deputy of a senior authorising office or by a person who for the purposes of section 34 is entitled to act for a senior authorising officer, that designated deputy or person shall also be entitled to appeal under this section.

(3)An appeal under this section must be brought within the period of seven days beginning with the day on which the refusal or decision appealed against is reported to the appellant.

(4)Subject to subsection (5), the [F197Investigatory Powers Commissioner] , on an appeal under this section, shall allow the appeal if—

(a)he is satisfied that there were reasonable grounds for believing that the requirements of section 32(2)(a) and (b) were satisfied in relation to the authorisation at the time in question; and

(b)he is not satisfied that the authorisation is one of which notice was given in accordance with section 35(3)(b) without there being any reasonable grounds for believing that the case was one of urgency.

(5)If, on an appeal falling within subsection (1)(b), the [F197Investigatory Powers Commissioner ]

(a)is satisfied that grounds exist which justify the quashing or cancellation under section 37 of the authorisation in question, but

(b)considers that the authorisation should have been quashed or cancelled from a different time from that from which it was quashed or cancelled by the [F198Judicial Commissioner] against whose decision the appeal is brought,

he may modify that Commissioner’s decision to quash or cancel the authorisation, and any related decision for the destruction of records, so as to give effect to the decision under section 37 that he considers should have been made.

(6)Where, on an appeal under this section against a decision to quash or cancel an authorisation, the [F197Investigatory Powers Commissioner] allows the appeal he shall also quash any related order for the destruction of records relating to information obtained by the authorised conduct.

(7)In this section “designated deputy” has the same meaning as in section 34.

Textual Amendments

F194Words in s. 38 heading substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(g), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F196Words in s. 38(1)(a) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(e), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F197Words in s. 38(4)-(6) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(b), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

F198Words in s. 38(5)(b) substituted (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 233(3)(f), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(e)

Modifications etc. (not altering text)

39 Appeals to the [F199Investigatory Powers Commissioner] : supplementary.U.K.

(1)Where the [F200Investigatory Powers Commissioner] has determined an appeal under section 38, he shall give notice of his determination to both—

(a)the person by whom the appeal was brought; and

(b)the [F201Judicial Commissioner] whose decision was appealed against.

(2)Where the determination of the [F202Investigatory Powers Commissioner ] on an appeal under section 38 is a determination to dismiss the appeal, the [F202Investigatory Powers Commissioner ] shall make a report of his findings—

(a)to the persons mentioned in subsection (1); and

(b)to the Prime Minister.

(3)[F203Subsections (6) to (8) of section 234 of the Investigatory Powers Act 2016] (reports to be laid before Parliament and exclusion of matters from the report) apply in relation to any report to the Prime Minister under subsection (2) of this section as they apply in relation to any report under [F204subsection (1) of that section] .

(4)Subject to subsection (2) of this section, the [F205Investigatory Powers Commissioner] shall not give any reasons for any determination of his on an appeal under section 38.

F20640 Information to be provided to Surveillance Commissioners.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Other authorisationsU.K.

41 Secretary of State authorisations.U.K.

(1)The Secretary of State shall not grant an authorisation for the carrying out of intrusive surveillance except on an application made by—

(a)a member of any of the intelligence services;

(b)an official of the Ministry of Defence;

(c)a member of Her Majesty’s forces;

(d)an individual holding an office, rank or position with any such public authority as may be designated for the purposes of this section as an authority whose activities may require the carrying out of intrusive surveillance.

(2)Section 32 shall have effect in relation to the grant of an authorisation by the Secretary of State on the application of an official of the Ministry of Defence, or of a member of Her Majesty’s forces, as if the only matters mentioned in subsection (3) of that section were—

(a)the interests of national security; and

(b)the purpose of preventing or detecting serious crime.

(3)The designation of any public authority for the purposes of this section shall be by order made by the Secretary of State.

(4)The Secretary of State may by order provide, in relation to any public authority, that an application for an authorisation for the carrying out of intrusive surveillance may be made by an individual holding an office, rank or position with that authority only where his office, rank or position is one prescribed by the order.

(5)The Secretary of State may by order impose restrictions—

(a)on the authorisations for the carrying out of intrusive surveillance that may be granted on the application of an individual holding an office, rank or position with any public authority designated for the purposes of this section; and

(b)on the circumstances in which, or the purposes for which, such authorisations may be granted on such an application.

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

(7)References in this section to a member of Her Majesty’s forces do not include references to any member of Her Majesty’s forces who is a member of a police force by virtue of his service with the [F207Royal Navy Police], the Royal Military Police or the Royal Air Force Police [F208or is a member of the tri-service serious crime unit].

Textual Amendments

F208Words in s. 41(7) inserted (1.5.2022 for specified purposes) by Armed Forces Act 2021 (c. 35), s. 24(1), Sch. 5 para. 19; S.I. 2022/471, reg. 2(e)

42 Intelligence services authorisations.U.K.

(1)The grant by the Secretary of State [F209or, the Scottish Ministers (by virtue of provision under section 63 of the Scotland Act 1998)] on the application of a member of one of the intelligence services of any authorisation under this Part must be made by the issue of a warrant.

(2)A single warrant issued by the Secretary of State [F209or, the Scottish Ministers (by virtue of provision under s. 63 of the Scotland Act 1998)]may combine both—

(a)an authorisation under this Part; and

(b)an intelligence services warrant;

but the provisions of this Act or the M13Intelligence Services Act 1994 that are applicable in the case of the authorisation under this Part or the intelligence services warrant shall apply separately in relation to the part of the combined warrant to which they are applicable.

(3)Intrusive surveillance in relation to any premises or vehicle in the British Islands shall be capable of being authorised by a warrant issued under this Part on the application of a member of the Secret Intelligence Service or GCHQ only if the authorisation contained in the warrant is one satisfying the requirements of section 32(2)(a) otherwise than in connection with any functions of that intelligence service in support of the prevention or detection of serious crime.

(4)Subject to subsection (5), the functions of the Security Service shall include acting on behalf of the Secret Intelligence Service or GCHQ in relation to—

(a)the application for and grant of any authorisation under this Part in connection with any matter within the functions of the Secret Intelligence Service or GCHQ; and

(b)the carrying out, in connection with any such matter, of any conduct authorised by such an authorisation.

(5)Nothing in subsection (4) shall authorise the doing of anything by one intelligence service on behalf of another unless—

(a)it is something which either the other service or a member of the other service has power to do; and

(b)it is done otherwise than in connection with functions of the other service in support of the prevention or detection of serious crime.

(6)In this section “intelligence services warrant” means a warrant under section 5 of the M14Intelligence Services Act 1994.

Textual Amendments

F209Words in s 42(1)(2) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 7(a)(b) (with art. 6)

Modifications etc. (not altering text)

C19S. 42 modified (S.) (14.12.2000) by S.I. 2000/3253, arts. 1(1)(2), 2, Sch. 1 para. 4(1) (with art. 6)

C20S. 42: functions transferred to the Scottish Ministers (S.) (15.12.2000) by virtue of S.I. 2000/3253, arts. 1(1)(3), 3, Sch. 2 (with art. 6)

Marginal Citations

Grant, renewal and duration of authorisationsU.K.

43 General rules about grant, renewal and duration.U.K.

(1)An authorisation under this Part—

(a)may be granted or renewed orally in any urgent case in which the entitlement to act of the person granting or renewing it is not confined to urgent cases; and

(b)in any other case, must be in writing.

[F210(1A)Subsection (1)(a) does not apply in relation to an authorisation under section 28 or 29 to which section 32A applies.]

(2)A single authorisation may combine two or more different authorisations under this Part; but the provisions of this Act that are applicable in the case of each of the authorisations shall apply separately in relation to the part of the combined authorisation to which they are applicable.

(3)Subject to subsections (4) and (8), an authorisation under this Part shall cease to have effect at the end of the following period—

(a)in the case of an authorisation which—

(i)has not been renewed and was granted either orally or by a person whose entitlement to act is confined to urgent cases, or

(ii)was last renewed either orally or by such a person,

the period of seventy-two hours beginning with the time when the grant of the authorisation or, as the case may be, its latest renewal takes effect;

(b)in a case not falling within paragraph (a) in which the authorisation is for the conduct or the use of a covert human intelligence source [F211or is an authorisation under section 29B], the period of twelve months beginning with the day on which the grant of the authorisation or, as the case may be, its latest renewal takes effect; and

(c)in any case not falling within paragraph (a) or (b), the period of three months beginning with the day on which the grant of the authorisation or, as the case may be, its latest renewal takes effect.

(4)Subject to subsection (6), an authorisation under this Part may be renewed, at any time before the time at which it ceases to have effect, by any person who would be entitled to grant a new authorisation in the same terms.

(5)Sections 28 to 41 shall have effect in relation to the renewal of an authorisation under this Part as if references to the grant of an authorisation included references to its renewal.

(6)A person shall not renew an authorisation for the conduct or the use of a covert human intelligence source [F212or an authorisation under section 29B], unless he—

(a)is satisfied that a review has been carried out of the matters mentioned in subsection (7); and

(b)has, for the purpose of deciding whether he should renew the authorisation, considered the results of that review.

[F213(6A)The relevant judicial authority (within the meaning given by subsection (7) of section 32A) shall not make an order under that section approving the renewal of an authorisation for the conduct or the use of a covert human intelligence source unless the relevant judicial authority—

(a)is satisfied that a review has been carried out of the matters mentioned in subsection (7) below, and

(b)has, for the purpose of deciding whether to make the order, considered the results of that review.]

(7)The matters mentioned in [F214subsections (6) and (6A)] are—

(a)the use made of the source in the period since the grant or, as the case may be, latest renewal of the authorisation; and

(b)the tasks given to the source during that period and the information obtained from the conduct or the use of the source.

(8)The Secretary of State may by order provide in relation to authorisations of such descriptions as may be specified in the order that subsection (3) is to have effect as if the period at the end of which an authorisation of a description so specified is to cease to have effect were such period shorter than that provided for by that subsection as may be fixed by or determined in accordance with that order.

(9)References in this section to the time at which, or the day on which, the grant or renewal of an authorisation takes effect are references—

(a)in the case of the grant of an authorisation to which paragraph (c) does not apply, to the time at which or, as the case may be, day on which the authorisation is granted;

(b)in the case of the renewal of an authorisation to which paragraph (c) does not apply, to the time at which or, as the case may be, day on which the authorisation would have ceased to have effect but for the renewal; and

(c)in the case of any grant or renewal that takes effect under subsection (2) of section [F21532A or] 36 at a time or on a day later than that given by paragraph (a) or (b), to the time at which or, as the case may be, day on which the grant or renewal takes effect in accordance with that subsection.

(10)In relation to any authorisation granted by a member of any of the intelligence services, and in relation to any authorisation contained in a warrant issued by the Secretary of State on the application of a member of any of the intelligence services, this section has effect subject to the provisions of section 44.

Textual Amendments

F211Words in s. 43(3)(b) inserted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), s. 9(2), Sch. para. 6(2); S.I. 2021/605, reg. 2(a)(b)(c)

F212Words in s. 43(6) inserted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), s. 9(2), Sch. para. 6(3); S.I. 2021/605, reg. 2(a)(b)(c)

F214Words in s. 43(7) substituted (1.11.2012) by Protection of Freedoms Act 2012 (c. 9), ss. 38(2)(b), 120 (with s. 97); S.I. 2012/2075, art. 4(b) (with art. 6)

Modifications etc. (not altering text)

C21S. 43(3) modified (6.11.2000) by S.I. 2000/2793, art. 6 (as amended (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), ss. 2(7), 9(2) (with s. 2(9)); S.I. 2021/605, reg. 2(a)(b)(c))

S.43 applied (with modifications) (16.3.2001) by S.I. 2001/1057, art. 4

C25S. 43(3) modified (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by S.I. 2000/2793, art. 10 (as inserted by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), ss. 2(8), 9(2) (with s. 2(9)); S.I. 2021/605, reg. 2(a)(b)(c))

44 Special rules for intelligence services authorisations.U.K.

(1)Subject to subsection (2), a warrant containing an authorisation for the carrying out of intrusive surveillance—

(a)shall not be issued on the application of a member of any of the intelligence services, and

(b)if so issued shall not be renewed,

except under the hand of the Secretary of State [F216or, in the case of a warrant issued by the Scottish Ministers(by virtue of provision made under section 63 of the Scotland Act 1998), a member of the Scottish Executive.]

(2)In an urgent case in which—

(a)an application for a warrant containing an authorisation for the carrying out of intrusive surveillance has been made by a member of any of the intelligence services, and

(b)the Secretary of State has himself [F217or the Scottish Ministers(by virtue of provision made under section 63 of the Scotland Act 1998) have themselves] expressly authorised the issue of the warrant in that case,

the warrant may be issued (but not renewed) under the hand of a senior official [F218 or as the case may be, a member of the staffof the Scottish Administration who is a member of the Senior Civil Service and is designated by the Scottish Ministers as a person under whose hand a warrant may be issued in such a case (in this section referred to as “a designated official”)]

(3)Subject to subsection (6), a warrant containing an authorisation for the carrying out of intrusive surveillance which—

(a)was issued, on the application of a member of any of the intelligence services, under the hand of a senior official [F219or, as the case may be, a designated official] and

(b)has not been renewed under the hand of the Secretary of State [F220or, in the case of a warrant issued by the Scottish Ministers (by virtue of provision made under section 3 of the Scotalnd Act 1998), a member of the Scottish Executive],

shall cease to have effect at the end of the second working day following the day of the issue of the warrant, instead of at the time provided for by section 43(3).

(4)Subject to subsections (3) and (6), where any warrant for the carrying out of intrusive surveillance which is issued or was last renewed on the application of a member of any of the intelligence services, the warrant (unless renewed or, as the case may be, renewed again) shall cease to have effect at the following time, instead of at the time provided for by section 43(3), namely—

(a)in the case of a warrant that has not been renewed, at the end of the period of six months beginning with the day on which it was issued; and

(b)in any other case, at the end of the period of six months beginning with the day on which it would have ceased to have effect if not renewed again.

(5)Subject to subsection (6), where—

(a)an authorisation for the carrying out of directed surveillance is granted by a member of any of the intelligence services, and

(b)the authorisation is renewed by an instrument endorsed under the hand of the person renewing the authorisation with a statement that the renewal is believed to be necessary on grounds falling within section 32(3)(a) or (c),

the authorisation (unless renewed again) shall cease to have effect at the end of the period of six months beginning with the day on which it would have ceased to have effect but for the renewal, instead of at the time provided for by section 43(3).

(6)The Secretary of State may by order provide in relation to authorisations of such descriptions as may be specified in the order that subsection (3), (4) or (5) is to have effect as if the period at the end of which an authorisation of a description so specified is to cease to have effect were such period shorter than that provided for by that subsection as may be fixed by or determined in accordance with that order.

(7)Notwithstanding anything in section 43(2), in a case in which there is a combined warrant containing both—

(a)an authorisation for the carrying out of intrusive surveillance, and

(b)an authorisation for the carrying out of directed surveillance,

the reference in subsection (4) of this section to a warrant for the carrying out of intrusive surveillance is a reference to the warrant so far as it confers both authorisations.

Textual Amendments

F216Words in s. 44(1) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 8(a) (with art. 6)

F217Words in s. 44(2) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 8(b)(i) (with art. 6)

F218Words inserted at the end of s. 44(2) (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 8(b)(ii) (with art. 6)

F219Words in s. 44(3)(a) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 8(c)(i) (with art. 6)

F220Words in s. 44(3)(b) inserted (S.) (15.12.2000) by S.I. 2000/3253, arts. 1(1), 4(1), Sch. 3 Pt. II para. 8(c)(ii) (with art. 6)

Modifications etc. (not altering text)

C26S. 44 excluded by 2016 c. 25, Sch. 8 para. 27(4) (as inserted (26.7.2018) by The Investigatory Powers (Codes of Practice and Miscellaneous Amendments) Order 2018 (S.I. 2018/905), arts. 1(3), 6)

C27S. 44(1)(2)(b) modified (S.) (14.12.2000) by S.I. 2000/3253, arts. 1(1)(2), 2, Sch. 1 para. 5 (with art. 6)

C28S. 44(1)(2)(b): functions transferred to the Scottish Ministers (S.) (15.12.2000) by virtue of S.I. 2000/3253, arts. 1(1)(3), 3, Sch. 2 (with art. 6)

45 Cancellation of authorisations.U.K.

(1)The person who granted or, as the case may be, last renewed an authorisation under this Part shall cancel it if—

(a)he is satisfied that the authorisation is one in relation to which the requirements of section 28(2)(a) and (b), 29(2)(a) and (b) [F221, 29B(4)(a) and (b)] or, as the case may be, 32(2)(a) and (b) are no longer satisfied; F222...

(b)in the case of an authorisation under section 29, he is satisfied that arrangements for the source’s case that satisfy the requirements mentioned in subsection (2)(c) of that section no longer exist.

[F223(c)in the case of an authorisation under section 29B where the source is under the age of 18 (“the juvenile source”), the person—

(i)becomes aware of circumstances in which it is reasonably foreseeable that harm, within the meaning of section 29C(5), to the juvenile source would result from the authorisation,

(ii)is satisfied that the authorisation would no longer be compatible with the need to safeguard and promote the best interests of the juvenile source, or

(iii)is satisfied that arrangements for the juvenile source's case that satisfy the requirements of subsection (3)(c) of section 29C no longer exist; or

(d)in the case of any authorisation under section 29B, the person is satisfied that any arrangements for the source's case required to satisfy any requirements mentioned in subsection (4)(c) of that section no longer exist]

(2)Where an authorisation under this Part was granted or, as the case may be, last renewed—

(a)by a person entitled to act for any other person, or

(b)by the deputy of any other person,

that other person shall cancel the authorisation if he is satisfied as to [F224any] of the matters mentioned in subsection (1).

(3)Where an authorisation under this Part was granted or, as the case may be, last renewed by a person whose deputy had power to grant it, that deputy shall cancel the authorisation if he is satisfied as to [F225any] of the matters mentioned in subsection (1).

(4)The Secretary of State may by regulations provide for the person by whom any duty imposed by this section is to be performed in a case in which it would otherwise fall on a person who is no longer available to perform it.

(5)Regulations under subsection (4) may provide for the person on whom the duty is to fall to be a person appointed in accordance with the regulations.

(6)The references in this section to a person’s deputy are references to the following—

(a) in relation to—

(i)a chief constable of a police force maintained under section 2 of the M15Police Act 1996,

(ii)the Commissioner of Police for the City of London, or

[F226(iii)the chief constable of the Police Service of Scotland,]

to his designated deputy;

(b)in relation to the Commissioner of Police of the Metropolis, to an Assistant Commissioner of Police of the Metropolis; F227. . . [F228and]

(c)in relation to the Chief Constable of the Royal Ulster Constabulary, to the Deputy Chief Constable of the Royal Ulster Constabulary; F229...

F229(ca). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)F230. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e)F230. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)In this section “designated deputy” has the same meaning as in section 34.

Textual Amendments

F221Words in s. 45(1)(a) inserted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), s. 9(2), Sch. para. 7(2)(a); S.I. 2021/605, reg. 2(a)(b)(c)

F222Word in s. 45(1)(a) omitted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by virtue of Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), s. 9(2), Sch. para. 7(2)(b); S.I. 2021/605, reg. 2(a)(b)(c)

F223S. 45(1)(c)(d) inserted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), s. 9(2), Sch. para. 7(2)(c); S.I. 2021/605, reg. 2(a)(b)(c)

F224Word in s. 45(2) substituted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), s. 9(2), Sch. para. 7(3); S.I. 2021/605, reg. 2(a)(b)(c)

F225Word in s. 45(3) substituted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), s. 9(2), Sch. para. 7(4); S.I. 2021/605, reg. 2(a)(b)(c)

Modifications etc. (not altering text)

C29S. 45 applied (with modifications) (16.3.2001) by S.I. 2001/1057, art. 5

C30S. 45(1): functions transferred to the Scottish Ministers (15.12.2000) by virtue of S.I. 2000/3253, arts. 1(1)(3), 3, Sch. 2 (with art. 6)

C31S. 45(1)(a) modified (S.) (14.12.2000) by S.I. 2000/3253, arts. 1(1), 2, Sch. 1 para. 5 (with art. 6)

Marginal Citations

ScotlandU.K.

46 Restrictions on authorisations extending to Scotland.U.K.

(1)No person shall grant or renew an authorisation under this Part for the carrying out of any conduct if it appears to him—

(a)that the authorisation is not one for which this Part is the relevant statutory provision for all parts of the United Kingdom; and

(b)that all the conduct authorised by the grant or, as the case may be, renewal of the authorisation is likely to take place in Scotland.

(2) In relation to any authorisation, this Part is the relevant statutory provision for all parts of the United Kingdom in so far as it—

(a) is granted or renewed on the grounds that it is necessary in the interests of national security or in the interests of the economic well-being of the United Kingdom;

(b)is granted or renewed by or on the application of a person holding any office, rank or position with any of the public authorities specified in subsection (3);

(c)authorises conduct of a person holding an office, rank or position with any of the public authorities so specified;

(d)authorises conduct of [F231or in relation to] an individual acting as a covert human intelligence source for the benefit of any of the public authorities so specified; or

(e)authorises conduct that is surveillance by virtue of section 48(4).

[F232(ea)the department of the Secretary of State by whom functions relating to immigration are exercisable; and]

(3)The public authorities mentioned in subsection (2) are—

(a)each of the intelligence services;

(b)Her Majesty’s forces;

(c)the Ministry of Defence;

(d)the Ministry of Defence Police;

[F233(dza)the Civil Nuclear Constabulary;]

[F234(da)the CMA;]

[F235(db)the National Crime Agency;]

[F236(e)the Commissioners for Her Majesty's Revenue F237... Customs;]

(f)the British Transport Police.

(4)For the purposes of so much of this Part as has effect in relation to any other public authority by virtue of—

(a)the fact that it is a public authority for the time being specified in Schedule 1, or

(b)an order under subsection (1)(d) of section 41 designating that authority for the purposes of that section,

the authorities specified in subsection (3) of this section shall be treated as including that authority to the extent that the Secretary of State by order directs that the authority is a relevant public authority or, as the case may be, is a designated authority for all parts of the United Kingdom.

[F238(5)No person may grant or renew a section 29B(5)(b) authorisation if it appears to the person that all or some of the conduct authorised by the section 29B(5)(b) authorisation is likely to take place in Scotland.

(6)But subsection (5) does not apply if the grant or renewal of the section 29B(5)(b) authorisation is for a purpose relating to a reserved matter (within the meaning of the Scotland Act 1998).

(7)For the purposes of subsections (5) and (6), “a section 29B(5)(b) authorisation” means an authorisation under section 29B in so far as it is granted or, as the case may be, renewed on the grounds that it is necessary on grounds falling within section 29B(5)(b).]

Textual Amendments

F231Words in s. 46(2)(d) inserted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), s. 9(2), Sch. para. 8(a); S.I. 2021/605, reg. 2(a)(b)(c)

F237Word in s. 46(3)(e) omitted (25.6.2013) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 21 para. 13(a) (with Sch. 21 para. 40); S.I. 2013/1042, art. 4(i)

F238S. 46(5)-(7) inserted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), s. 9(2), Sch. para. 8(b); S.I. 2021/605, reg. 2(a)(b)(c)

Supplemental provision for Part IIU.K.

47 Power to extend or modify authorisation provisions.U.K.

(1)The Secretary of State may by order do one or both of the following—

(a)apply this Part, with such modifications as he thinks fit, to any such surveillance that is neither directed nor intrusive as may be described in the order;

(b)provide for any description of directed surveillance to be treated for the purposes of this Part as intrusive surveillance.

(2)No order shall be made under this section unless a draft of it has been laid before Parliament and approved by a resolution of each House.

48 Interpretation of Part II.U.K.

(1)In this Part—

(2)Subject to subsection (3), in this Part “surveillance” includes—

(a)monitoring, observing or listening to persons, their movements, their conversations or their other activities or communications;

(b)recording anything monitored, observed or listened to in the course of surveillance; and

(c)surveillance by or with the assistance of a surveillance device.

(3)References in this Part to surveillance do not include references to—

(a)any conduct of a covert human intelligence source for obtaining or recording (whether or not using a surveillance device) any information which is disclosed in the presence of the source;

(b)the use of a covert human intelligence source for so obtaining or recording information; or

(c)any such entry on or interference with property or with wireless telegraphy as would be unlawful unless authorised under—

(i)section 5 of the M16Intelligence Services Act 1994 (warrants for the intelligence services); F241...

(ii)Part III of the M17Police Act 1997 (powers of the police and of [F242officers of Revenue and Customs)][F243; or

(iii)Part 5, or Chapter 3 of Part 6, of the Investigatory Powers Act 2016 (equipment interference).]

(4)References in this Part to surveillance include references to the interception of a communication in the course of its transmission by means of a postal service or telecommunication system if, and only if—

(a)the communication is one sent by or intended for a person who has consented to the interception of communications sent by or to him; and

(b)there is no interception warrant authorising the interception.

(5)References in this Part to an individual holding an office or position with a public authority include references to any member, official or employee of that authority.

(6)For the purposes of this Part the activities of a covert human intelligence source which are to be taken as activities for the benefit of a particular public authority include any conduct of his as such a source which is in response to inducements or requests made by or on behalf of that authority.

(7)In subsection (1)—

(a)the reference to a person having the right to use a vehicle does not, in relation to a motor vehicle, include a reference to a person whose right to use the vehicle derives only from his having paid, or undertaken to pay, for the use of the vehicle and its driver for a particular journey; and

(b)the reference to premises occupied or used by any person for residential purposes or otherwise as living accommodation does not include a reference to so much of any premises as constitutes any common area to which he has or is allowed access in connection with his use or occupation of any accommodation.

(8)In this section—

Part IIIU.K. Investigation of electronic data protected by encryption etc.

Power to require disclosureU.K.

49 Notices requiring disclosure.U.K.

(1)This section applies where any protected information—

(a)has come into the possession of any person by means of the exercise of a statutory power to seize, detain, inspect, search or otherwise to interfere with documents or other property, or is likely to do so;

(b)has come into the possession of any person by means of the exercise of any statutory power to intercept communications [F244or obtain secondary data from communications], or is likely to do so;

(c)has come into the possession of any person by means of the exercise of any power conferred by an authorisation under [F245section 22(3) [F246or (3B)] or under Part II] [F245Part 3 of the Investigatory Powers Act 2016 or Part 2 of this Act], or as a result of the giving of a notice [F247under section 22(4)] [F247in pursuance of an authorisation under Part 3 of the Act of 2016 or as the result of the issue of a warrant under Chapter 2 of Part 6 of the Act of 2016], or is likely to do so;

(d)has come into the possession of any person as a result of having been provided or disclosed in pursuance of any statutory duty (whether or not one arising as a result of a request for information), or is likely to do so; or

(e)has, by any other lawful means not involving the exercise of statutory powers, come into the possession of any of the intelligence services, the police, [F248the National Crime Agency] F249... or [F250Her Majesty's Revenue and Customs], or is likely so to come into the possession of any of those services, the police, [F248the National Crime Agency] F249... or [F250Her Majesty's Revenue and Customs].

(2)If any person with the appropriate permission under Schedule 2 believes, on reasonable grounds—

(a)that a key to the protected information is in the possession of any person,

(b)that the imposition of a disclosure requirement in respect of the protected information is—

(i)necessary on grounds falling within subsection (3), or

(ii)necessary for the purpose of securing the effective exercise or proper performance by any public authority of any statutory power or statutory duty,

(c)that the imposition of such a requirement is proportionate to what is sought to be achieved by its imposition, and

(d)that it is not reasonably practicable for the person with the appropriate permission to obtain possession of the protected information in an intelligible form without the giving of a notice under this section,

the person with that permission may, by notice to the person whom he believes to have possession of the key, impose a disclosure requirement in respect of the protected information.

(3)A disclosure requirement in respect of any protected information is necessary on grounds falling within this subsection if it is necessary—

(a)in the interests of national security;

(b)for the purpose of preventing or detecting crime; or

(c)in the interests of the economic well-being of the United Kingdom.

(4)A notice under this section imposing a disclosure requirement in respect of any protected information—

(a)must be given in writing or (if not in writing) must be given in a manner that produces a record of its having been given;

(b)must describe the protected information to which the notice relates;

(c)must specify the matters falling within subsection (2)(b)(i) or (ii) by reference to which the notice is given;

(d)must specify the office, rank or position held by the person giving it;

(e)must specify the office, rank or position of the person who for the purposes of Schedule 2 granted permission for the giving of the notice or (if the person giving the notice was entitled to give it without another person’s permission) must set out the circumstances in which that entitlement arose;

(f)must specify the time by which the notice is to be complied with; and

(g)must set out the disclosure that is required by the notice and the form and manner in which it is to be made;

and the time specified for the purposes of paragraph (f) must allow a period for compliance which is reasonable in all the circumstances.

(5)Where it appears to a person with the appropriate permission—

(a)that more than one person is in possession of the key to any protected information,

(b)that any of those persons is in possession of that key in his capacity as an officer or employee of any body corporate, and

(c)that another of those persons is the body corporate itself or another officer or employee of the body corporate,

a notice under this section shall not be given, by reference to his possession of the key, to any officer or employee of the body corporate unless he is a senior officer of the body corporate or it appears to the person giving the notice that there is no senior officer of the body corporate and (in the case of an employee) no more senior employee of the body corporate to whom it is reasonably practicable to give the notice.

(6)Where it appears to a person with the appropriate permission—

(a)that more than one person is in possession of the key to any protected information,

(b)that any of those persons is in possession of that key in his capacity as an employee of a firm, and

(c)that another of those persons is the firm itself or a partner of the firm,

a notice under this section shall not be given, by reference to his possession of the key, to any employee of the firm unless it appears to the person giving the notice that there is neither a partner of the firm nor a more senior employee of the firm to whom it is reasonably practicable to give the notice.

(7)Subsections (5) and (6) shall not apply to the extent that there are special circumstances of the case that mean that the purposes for which the notice is given would be defeated, in whole or in part, if the notice were given to the person to whom it would otherwise be required to be given by those subsections.

(8)A notice under this section shall not require the making of any disclosure to any person other than—

(a)the person giving the notice; or

(b)such other person as may be specified in or otherwise identified by, or in accordance with, the provisions of the notice.

(9)A notice under this section shall not require the disclosure of any key which—

(a)is intended to be used for the purpose only of generating electronic signatures; and

(b)has not in fact been used for any other purpose.

[F251(9A)In subsection (1)(b) the reference to obtaining secondary data from communications is to be read in accordance with section 16 of the Investigatory Powers Act 2016.]

(10)In this section “senior officer”, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body corporate; and for this purpose “director”, in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.

(11)Schedule 2 (definition of the appropriate permission) shall have effect.

Textual Amendments

F245Words in s. 49(1)(c) substituted (5.2.2019 for specified purposes) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 55(a) (with Sch. 9 paras. 7, 8, 10); S.I. 2019/174, reg. 2(p)(iii)

F247Words in s. 49(1)(c) substituted (5.2.2019 for specified purposes) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 55(b) (with Sch. 9 paras. 7, 8, 10); S.I. 2019/174, reg. 2(p)(iii)

F248Words in s. 49(1)(e) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 90; S.I. 2013/1682, art. 3(v)

F250Words in s. 49(1)(e) substituted (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 94, Sch. 12 para. 19; S.I. 2008/219, art. 2(b)

Modifications etc. (not altering text)

50 Effect of notice imposing disclosure requirement.U.K.

(1)Subject to the following provisions of this section, the effect of a section 49 notice imposing a disclosure requirement in respect of any protected information on a person who is in possession at a relevant time of both the protected information and a means of obtaining access to the information and of disclosing it in an intelligible form is that he—

(a)shall be entitled to use any key in his possession to obtain access to the information or to put it into an intelligible form; and

(b)shall be required, in accordance with the notice imposing the requirement, to make a disclosure of the information in an intelligible form.

(2)A person subject to a requirement under subsection (1)(b) to make a disclosure of any information in an intelligible form shall be taken to have complied with that requirement if—

(a) he makes, instead, a disclosure of any key to the protected information that is in his possession; and

(b)that disclosure is made, in accordance with the notice imposing the requirement, to the person to whom, and by the time by which, he was required to provide the information in that form.

(3)Where, in a case in which a disclosure requirement in respect of any protected information is imposed on any person by a section 49 notice—

(a)that person is not in possession of the information,

(b)that person is incapable, without the use of a key that is not in his possession, of obtaining access to the information and of disclosing it in an intelligible form, or

(c)the notice states, in pursuance of a direction under section 51, that it can be complied with only by the disclosure of a key to the information,

the effect of imposing that disclosure requirement on that person is that he shall be required, in accordance with the notice imposing the requirement, to make a disclosure of any key to the protected information that is in his possession at a relevant time.

(4)Subsections (5) to (7) apply where a person (“the person given notice”)—

(a)is entitled or obliged to disclose a key to protected information for the purpose of complying with any disclosure requirement imposed by a section 49 notice; and

(b)is in possession of more than one key to that information.

(5)It shall not be necessary, for the purpose of complying with the requirement, for the person given notice to make a disclosure of any keys in addition to those the disclosure of which is, alone, sufficient to enable the person to whom they are disclosed to obtain access to the information and to put it into an intelligible form.

(6)Where—

(a)subsection (5) allows the person given notice to comply with a requirement without disclosing all of the keys in his possession, and

(b)there are different keys, or combinations of keys, in the possession of that person the disclosure of which would, under that subsection, constitute compliance,

the person given notice may select which of the keys, or combination of keys, to disclose for the purpose of complying with that requirement in accordance with that subsection.

(7)Subject to subsections (5) and (6), the person given notice shall not be taken to have complied with the disclosure requirement by the disclosure of a key unless he has disclosed every key to the protected information that is in his possession at a relevant time.

(8)Where, in a case in which a disclosure requirement in respect of any protected information is imposed on any person by a section 49 notice—

(a)that person has been in possession of the key to that information but is no longer in possession of it,

(b)if he had continued to have the key in his possession, he would have been required by virtue of the giving of the notice to disclose it, and

(c)he is in possession, at a relevant time, of information to which subsection (9) applies,

the effect of imposing that disclosure requirement on that person is that he shall be required, in accordance with the notice imposing the requirement, to disclose all such information to which subsection (9) applies as is in his possession and as he may be required, in accordance with that notice, to disclose by the person to whom he would have been required to disclose the key.

(9)This subsection applies to any information that would facilitate the obtaining or discovery of the key or the putting of the protected information into an intelligible form.

(10)In this section “relevant time”, in relation to a disclosure requirement imposed by a section 49 notice, means the time of the giving of the notice or any subsequent time before the time by which the requirement falls to be complied with.

51 Cases in which key required.U.K.

(1)A section 49 notice imposing a disclosure requirement in respect of any protected information shall not contain a statement for the purposes of section 50(3)(c) unless—

(a)the person who for the purposes of Schedule 2 granted the permission for the giving of the notice in relation to that information, or

(b)any person whose permission for the giving of a such a notice in relation to that information would constitute the appropriate permission under that Schedule,

has given a direction that the requirement can be complied with only by the disclosure of the key itself.

(2)A direction for the purposes of subsection (1) by [F252the police, [F253the National Crime Agency], F254...,] [F255Her Majesty's Revenue and Customs] or a member of Her Majesty’s forces shall not be given—

(a)in the case of a direction by the police or by a member of Her Majesty’s forces who is a member of a police force, except by or with the permission of a chief officer of police;

[F256(aa)in the case of a direction by [F257the National Crime Agency], except by or with the permission of the [F258Director General of the National Crime Agency];]

F259(ab). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)in the case of a direction by [F255Her Majesty's Revenue and Customs], except by or with the permission of [F260the Commissioners for Her Majesty's Revenue and Customs]; or

(c)in the case of a direction by a member of Her Majesty’s forces who is not a member of a police force, except by or with the permission of a person of or above the rank of brigadier or its equivalent.

(3)A permission given for the purposes of subsection (2) by a chief officer of police, [F261the [F262Director General of the National Crime Agency],] F263... [F260the Commissioners for Her Majesty's Revenue and Customs] or a person of or above any such rank as is mentioned in paragraph (c) of that subsection must be given expressly in relation to the direction in question.

(4)A person shall not give a direction for the purposes of subsection (1) unless he believes—

(a)that there are special circumstances of the case which mean that the purposes for which it was believed necessary to impose the requirement in question would be defeated, in whole or in part, if the direction were not given; and

(b)that the giving of the direction is proportionate to what is sought to be achieved by prohibiting any compliance with the requirement in question otherwise than by the disclosure of the key itself.

(5)The matters to be taken into account in considering whether the requirement of subsection (4)(b) is satisfied in the case of any direction shall include—

(a)the extent and nature of any protected information, in addition to the protected information in respect of which the disclosure requirement is imposed, to which the key is also a key; and

(b)any adverse effect that the giving of the direction might have on a business carried on by the person on whom the disclosure requirement is imposed.

(6)Where a direction for the purposes of subsection (1) is given by a chief officer of police, [F264by the [F265Director General of the National Crime Agency],] F266... by [F260the Commissioners for Her Majesty's Revenue and Customs] or by a member of Her Majesty’s forces, the person giving the direction shall give a notification that he has [F267done so to the Investigatory Powers Commissioner].

(7)A notification under subsection (6)—

(a) must be given not more than seven days after the day of the giving of the direction to which it relates; and

(b)may be given either in writing or by being transmitted to [F268the Investigatory Powers Commissioner] by electronic means.

Textual Amendments

Contributions to costsU.K.

52 Arrangements for payments for disclosure.U.K.

(1)It shall be the duty of the Secretary of State to ensure that such arrangements are in force as he thinks appropriate for requiring or authorising, in such cases as he thinks fit, the making to persons to whom section 49 notices are given of appropriate contributions towards the costs incurred by them in complying with such notices.

(2)For the purpose of complying with his duty under this section, the Secretary of State may make arrangements for payments to be made out of money provided by Parliament.

OffencesU.K.

53 Failure to comply with a notice.U.K.

(1)A person to whom a section 49 notice has been given is guilty of an offence if he knowingly fails, in accordance with the notice, to make the disclosure required by virtue of the giving of the notice.

(2)In proceedings against any person for an offence under this section, if it is shown that that person was in possession of a key to any protected information at any time before the time of the giving of the section 49 notice, that person shall be taken for the purposes of those proceedings to have continued to be in possession of that key at all subsequent times, unless it is shown that the key was not in his possession after the giving of the notice and before the time by which he was required to disclose it.

(3) For the purposes of this section a person shall be taken to have shown that he was not in possession of a key to protected information at a particular time if—

(a)sufficient evidence of that fact is adduced to raise an issue with respect to it; and

(b)the contrary is not proved beyond a reasonable doubt.

(4)In proceedings against any person for an offence under this section it shall be a defence for that person to show—

(a)that it was not reasonably practicable for him to make the disclosure required by virtue of the giving of the section 49 notice before the time by which he was required, in accordance with that notice, to make it; but

(b)that he did make that disclosure as soon after that time as it was reasonably practicable for him to do so.

(5)A person guilty of an offence under this section shall be liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding [F269the appropriate maximum term] or to a fine, or to both;

(b)on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.

[F270(5A)In subsection (5) ‘the appropriate maximum term’ means—

(a)in a national security case [F271or a child indecency case], five years; and

(b)in any other case, two years.

(5B)In subsection (5A) ‘a national security case’ means a case in which the grounds specified in the notice to which the offence relates as the grounds for imposing a disclosure requirement were or included a belief that the imposition of the requirement was necessary in the interests of national security.]

[F272(6) In subsection (5A) “ a child indecency case ” means a case in which the grounds specified in the notice to which the offence relates as the grounds for imposing a disclosure requirement were or included a belief that the imposition of the requirement was necessary for the purpose of preventing or detecting an offence under any of the provisions listed in subsection (7).

(7)Those provisions are—

(a)section 1 of the Protection of Children Act 1978 (showing or taking etc an indecent photograph of a child: England and Wales);

(b)Article 3 of the Protection of Children (Northern Ireland) Order 1978 (S.I. 1978/1047 (N.I. 17)) (corresponding offence for Northern Ireland);

(c)section 52 or 52A of the Civic Government (Scotland) Act 1982 (showing or taking etc or possessing an indecent photograph of a child: Scotland);

(d)section 160 of the Criminal Justice Act 1988 (possessing an indecent photograph of a child: England and Wales);

(e)Article 15 of the Criminal Justice (Evidence, Etc.) (Northern Ireland) Order 1988 (S.I. 1988/1847 (N.I. 17)) (corresponding offence for Northern Ireland).]

Textual Amendments

F269Words in s. 53(5)(a) substituted (13.4.2006) by Terrorism Act 2006 (c. 11), ss. 15(1)(a), 39(2) (with s. 15(3)); S.I. 2006/1013, art. 2(2)(a)

F270S. 53(5A)(5B) inserted (13.4.2006) by Terrorism Act 2006 (c. 11), ss. 15(2), 39(2) (with s. 15(3)); S.I. 2006/1013, art. 2(2)(a)

F271Words in s. 53(5A)(a) inserted (25.1.2010) by Policing and Crime Act 2009 (c. 26), ss. 26(2)(4), 116; S.I. 2009/3096, art. 3(e)

54 Tipping-off.U.K.

(1)This section applies where a section 49 notice contains a provision requiring—

(a)the person to whom the notice is given, and

(b)every other person who becomes aware of it or of its contents,

to keep secret the giving of the notice, its contents and the things done in pursuance of it.

(2)A requirement to keep anything secret shall not be included in a section 49 notice except where—

(a)it is included with the consent of the person who for the purposes of Schedule 2 granted the permission for the giving of the notice; or

(b)the person who gives the notice is himself a person whose permission for the giving of such a notice in relation to the information in question would have constituted appropriate permission under that Schedule.

(3)A section 49 notice shall not contain a requirement to keep anything secret except where the protected information to which it relates—

(a)has come into the possession of the police, [F273the National Crime Agency], F274... [F275Her Majesty's Revenue and Customs] or any of the intelligence services, or

(b)is likely to come into the possession of the police, [F273the National Crime Agency], F274... [F275Her Majesty's Revenue and Customs] or any of the intelligence services,

by means which it is reasonable, in order to maintain the effectiveness of any investigation or operation or of investigatory techniques generally, or in the interests of the safety or well-being of any person, to keep secret from a particular person.

(4)A person who makes a disclosure to any other person of anything that he is required by a section 49 notice to keep secret shall be guilty of an offence and liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both;

(b)on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.

(5)In proceedings against any person for an offence under this section in respect of any disclosure, it shall be a defence for that person to show that—

(a)the disclosure was effected entirely by the operation of software designed to indicate when a key to protected information has ceased to be secure; and

(b)that person could not reasonably have been expected to take steps, after being given the notice or (as the case may be) becoming aware of it or of its contents, to prevent the disclosure.

(6)In proceedings against any person for an offence under this section in respect of any disclosure, it shall be a defence for that person to show that—

(a)the disclosure was made by or to a professional legal adviser in connection with the giving, by the adviser to any client of his, of advice about the effect of provisions of this Part; and

(b)the person to whom or, as the case may be, by whom it was made was the client or a representative of the client.

(7)In proceedings against any person for an offence under this section in respect of any disclosure, it shall be a defence for that person to show that the disclosure was made by a legal adviser—

(a)in contemplation of, or in connection with, any legal proceedings; and

(b)for the purposes of those proceedings.

(8)Neither subsection (6) nor subsection (7) applies in the case of a disclosure made with a view to furthering any criminal purpose.

(9)In proceedings against any person for an offence under this section in respect of any disclosure, it shall be a defence for that person to show that the disclosure was confined to a disclosure made to a [F276Judicial Commissioner ] or authorised—

(a)by such a Commissioner;

(b)by the terms of the notice;

(c)by or on behalf of the person who gave the notice; or

(d)by or on behalf of a person who—

(i)is in lawful possession of the protected information to which the notice relates; and

(ii)came into possession of that information as mentioned in section 49(1).

(10)In proceedings for an offence under this section against a person other than the person to whom the notice was given, it shall be a defence for the person against whom the proceedings are brought to show that he neither knew nor had reasonable grounds for suspecting that the notice contained a requirement to keep secret what was disclosed.

F277(11). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SafeguardsU.K.

55 General duties of specified authorities.U.K.

(1)This section applies to—

(a)the Secretary of State and every other Minister of the Crown in charge of a government department;

(b)every chief officer of police;

[F278(ba)the Director General of the National Crime Agency;]

F279(bb). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F280(c)the Commissioners for Her Majesty's Revenue and Customs;]

(d)every person whose officers or employees include persons with duties that involve the giving of section 49 notices.

(2)It shall be the duty of each of the persons to whom this section applies to ensure that such arrangements are in force, in relation to persons under his control who by virtue of this Part obtain possession of keys to protected information, as he considers necessary for securing—

(a)that a key disclosed in pursuance of a section 49 notice is used for obtaining access to, or putting into an intelligible form, only protected information in relation to which power to give such a notice was exercised or could have been exercised if the key had not already been disclosed;

(b)that the uses to which a key so disclosed is put are reasonable having regard both to the uses to which the person using the key is entitled to put any protected information to which it relates and to the other circumstances of the case;

(c)that, having regard to those matters, the use and any retention of the key are proportionate to what is sought to be achieved by its use or retention;

(d)that the requirements of subsection (3) are satisfied in relation to any key disclosed in pursuance of a section 49 notice;

(e)that, for the purpose of ensuring that those requirements are satisfied, any key so disclosed is stored, for so long as it is retained, in a secure manner;

(f)that all records of a key so disclosed (if not destroyed earlier) are destroyed as soon as the key is no longer needed for the purpose of enabling protected information to be put into an intelligible form.

(3)The requirements of this subsection are satisfied in relation to any key disclosed in pursuance of a section 49 notice if—

(a)the number of persons to whom the key is disclosed or otherwise made available, and

(b)the number of copies made of the key,

are each limited to the minimum that is necessary for the purpose of enabling protected information to be put into an intelligible form.

[F281(3A)The power of the Director General of the National Crime Agency to delegate functions under paragraph 10 of Schedule 1 to the Crime and Courts Act 2013 does not apply in relation to the Director General's duties under this section.]

F282(3B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)Subject to subsection (5), where any relevant person incurs any loss or damage in consequence of—

(a)any breach by a person to whom this section applies of the duty imposed on him by subsection (2), or

(b)any contravention by any person whatever of arrangements made in pursuance of that subsection in relation to persons under the control of a person to whom this section applies,

the breach or contravention shall be actionable against the person to whom this section applies at the suit or instance of the relevant person.

(5)A person is a relevant person for the purposes of subsection (4) if he is—

(a)a person who has made a disclosure in pursuance of a section 49 notice; or

(b)a person whose protected information or key has been disclosed in pursuance of such a notice;

and loss or damage shall be taken into account for the purposes of that subsection to the extent only that it relates to the disclosure of particular protected information or a particular key which, in the case of a person falling with paragraph (b), must be his information or key.

(6)For the purposes of subsection (5)—

(a)information belongs to a person if he has any right that would be infringed by an unauthorised disclosure of the information; and

(b)a key belongs to a person if it is a key to information that belongs to him or he has any right that would be infringed by an unauthorised disclosure of the key.

(7)In any proceedings brought by virtue of subsection (4), it shall be the duty of the court to have regard to any opinion with respect to the matters to which the proceedings relate that is or has been given by a [F283 Judicial Commissioner or the Investigatory Powers Commissioner for Northern Ireland ] .

F284(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Interpretation of Part IIIU.K.

56 Interpretation of Part III.U.K.

(1)In this Part—

(2)References in this Part to a person’s having information (including a key to protected information) in his possession include references—

(a)to its being in the possession of a person who is under his control so far as that information is concerned;

(b)to his having an immediate right of access to it, or an immediate right to have it transmitted or otherwise supplied to him; and

(c)to its being, or being contained in, anything which he or a person under his control is entitled, in exercise of any statutory power and without otherwise taking possession of it, to detain, inspect or search.

(3)References in this Part to something’s being intelligible or being put into an intelligible form include references to its being in the condition in which it was before an encryption or similar process was applied to it or, as the case may be, to its being restored to that condition.

(4)In this section—

(a)references to the authenticity of any communication or data are references to any one or more of the following—

(i)whether the communication or data comes from a particular person or other source;

(ii)whether it is accurately timed and dated;

(iii)whether it is intended to have legal effect;

and

(b)references to the integrity of any communication or data are references to whether there has been any tampering with or other modification of the communication or data.

Textual Amendments

F285S. 56(1): words in para. (a) of the definition of "chief officer of police" omitted (1.4.2013) by virtue of The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 2 para. 33(19)(a)(i)

F287S. 56(1): words in the definition of "chief officer of police" substituted (4.6.2007) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 174; S.I. 2007/1442, art. 2(1)

F288Words in s. 56(1) inserted (1.5.2022 for specified purposes) by Armed Forces Act 2021 (c. 35), s. 24(1), Sch. 5 para. 20; S.I. 2022/471, reg. 2(e)

F289S. 56(1): paras (j) and (k) in the definition of "chief officer of police" repealed (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 174, 178, Sch. 4 para. 146(a), Sch. 17; S.I. 2006/378, art. 4(1), Sch. paras. 10, 13(hh) (subject to art. 4(2)-(7))

F290S. 56(1): definition of "the custom and excise" repealed (15.2.2008) by Serious Crime Act 2007 (c. 27), ss. 88, 92, 94, Sch. 12 para. 23, Sch. 14; S.I. 2008/219, art. 2(d)(ii)

F291S. 56(1): words in the definition of "the police" inserted (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 178, Sch. 4 para. 149(b); S.I. 2006/378, art. 4(1), Sch. para. 10 (subject to art. 4(2)-(7))

F292 S. 56(1): words in para. (a) of the definition of "the police" substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 94(a); S.I. 2013/1682, art. 3(v)

F295Definition in s. 56(1) omitted (7.10.2013) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 94(b); S.I. 2013/1682, art. 3(v)

Marginal Citations

Part IVU.K. Scrutiny etc. of investigatory powers and of the functions of the intelligence services

Modifications etc. (not altering text)

C35Pt. IV (ss. 26-48): power to apply (with modifications) conferred (1.10.2002) by 2002 c. 30, s. 19(2)(b); S.I. 2002/2306, art. 2(b)(v)

CommissionersU.K.

F29657 Interception of Communications Commissioner.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F29758 Co-operation with and reports by s. 57 Commissioner.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F29859 Intelligence Services Commissioner.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F29959AAdditional functions of the Intelligence Services CommissionerU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F30060 Co-operation with and reports by s. 59 Commissioner.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

61 Investigatory Powers Commissioner for Northern Ireland.U.K.

(1)The Prime Minister, after consultation with the First Minister and deputy First Minister in Northern Ireland, shall appoint a Commissioner to be known as the Investigatory Powers Commissioner for Northern Ireland.

(2)The Investigatory Powers Commissioner for Northern Ireland shall keep under review the exercise and performance in Northern Ireland, by the persons on whom they are conferred or imposed, of any powers or duties under Part II which are conferred or imposed by virtue of an order under section 30 made by the Office of the First Minister and deputy First Minister in Northern Ireland.

(3)The Investigatory Powers Commissioner for Northern Ireland shall give the Tribunal all such assistance (including his opinion as to any issue falling to be determined by the Tribunal) as the Tribunal may require—

(a)in connection with the investigation of any matter by the Tribunal; or

(b)otherwise for the purposes of the Tribunal’s consideration or determination of any matter.

(4)It shall be the duty of—

(a)every person by whom, or on whose application, there has been given or granted any authorisation the function of giving or granting which is subject to review by the Investigatory Powers Commissioner for Northern Ireland,

(b)every person who has engaged in conduct with the authority of such an authorisation,

(c)every person who holds or has held any office, rank or position with the same public authority as a person falling within paragraph (a), and

(d)every person who holds or has held any office, rank or position with any public authority for whose benefit (within the meaning of Part II) activities which are or may be subject to any such review have been or may be carried out,

to disclose or provide to that Commissioner all such documents and information as he may require for the purpose of enabling him to carry out his functions.

(5)As soon as practicable after the end of each calendar year, the Investigatory Powers Commissioner for Northern Ireland shall make a report to the First Minister and deputy First Minister in Northern Ireland with respect to the carrying out of that Commissioner’s functions.

(6)The First Minister and deputy First Minister in Northern Ireland shall lay before the Northern Ireland Assembly a copy of every annual report made by the Investigatory Powers Commissioner for Northern Ireland under subsection (5), together with a statement as to whether any matter has been excluded from that copy in pursuance of subsection (7).

(7)If it appears to the First Minister and deputy First Minister in Northern Ireland, after consultation with the Investigatory Powers Commissioner for Northern Ireland, that the publication of any matter in an annual report would be contrary to the public interest or prejudicial to—

(a)the prevention or detection of serious crime, or

(b)the continued discharge of the functions of any public authority whose activities include activities that are subject to review by that Commissioner,

they may exclude that matter from the copy of the report as laid before the Northern Ireland Assembly.

(8)A person shall not be appointed under this section as the Investigatory Powers Commissioner for Northern Ireland unless he holds or has held office in Northern Ireland—

(a)in any capacity in which he is or was the holder of a high judicial office (within the meaning of [F301Part 3 of the Constitutional Reform Act 2005]); or

(b)as a county court judge.

(9)The Investigatory Powers Commissioner for Northern Ireland shall hold office in accordance with the terms of his appointment; and there shall be paid to him out of the Consolidated Fund of Northern Ireland such allowances as the Department of Finance and Personnel may determine.

(10)The First Minister and deputy First Minister in Northern Ireland shall, after consultation with the Investigatory Powers Commissioner for Northern Ireland, provide him with such staff as they consider necessary for the carrying out of his functions.

Textual Amendments

Modifications etc. (not altering text)

C37S. 61: power to repeal conferred (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 240(5)(a), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(i) (with regs. 6-11)

F30262 Additional functions of Chief Surveillance Commissioner.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F30363 Assistant Surveillance Commissioners.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

64 Delegation of [F304functions of the Investigatory Powers Commissioner for Northern Ireland].U.K.

(1)Anything authorised or required by or under any enactment F305...to be done by [F306the Investigatory Powers Commissioner for Northern Ireland] may be done by any member of the staff of that Commissioner who is authorised for the purpose (whether generally or specifically) by that Commissioner.

F307(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The TribunalU.K.

65 The Tribunal.U.K.

(1)There shall, for the purpose of exercising the jurisdiction conferred on them by this section, be a tribunal consisting of such number of members as Her Majesty may by Letters Patent appoint.

(2)The jurisdiction of the Tribunal shall be—

(a)to be the only appropriate tribunal for the purposes of section 7 of the M19Human Rights Act 1998 in relation to any proceedings under subsection (1)(a) of that section (proceedings for actions incompatible with Convention rights) which fall within subsection (3) of this section;

(b)to consider and determine any complaints made to them which, in accordance with subsection (4) F308. . . , are complaints for which the Tribunal is the appropriate forum;

(c)to consider and determine any reference to them by any person that he has suffered detriment as a consequence of any prohibition or restriction, by virtue of [F309section 56 of the Investigatory Powers Act 2016], on his relying in, or for the purposes of, any civil proceedings on any matter; and

(d)to hear and determine any other such proceedings falling within subsection (3) as may be allocated to them in accordance with provision made by the Secretary of State by order.

(3)Proceedings fall within this subsection if—

(a)they are proceedings against any of the intelligence services;

(b)they are proceedings against any other person in respect of any conduct, proposed conduct, by or on behalf of any of those services;

(c)they are proceedings brought by virtue of section 55(4); [F310 or]

F311(ca). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F311(cb). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)they are proceedings relating to the taking place in any challengeable circumstances of any conduct falling within subsection (5).

(4)The Tribunal is the appropriate forum for any complaint if it is a complaint by a person who is aggrieved by any conduct falling within subsection (5) which he believes—

(a)to have taken place in relation to him, to any of his property, to any communications sent by or to him, or intended for him, or to his use of any postal service, telecommunications service or telecommunication system; and

(b)to have taken place in challengeable circumstances or to have been carried out by or on behalf of any of the intelligence services.

F312(4A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)Subject to subsection (6), conduct falls within this subsection if (whenever it occurred) it is—

(a)conduct by or on behalf of any of the intelligence services;

(b)conduct for or in connection with the interception of communications in the course of their transmission by means of a postal service or telecommunication system;

[F313(ba)conduct for or in connection with the obtaining of secondary data from communications transmitted by means of such a service or system;

(bb)the issue, modification, renewal or service of a warrant under Part 2 or Chapter 1 of Part 6 of the Investigatory Powers Act 2016 (interception of communications);]

[F314(c)conduct of a kind which may be permitted or required by an authorisation or notice under Part 3 of that Act or a warrant under Chapter 2 of Part 6 of that Act (acquisition of communications data);

(cza)the giving of an authorisation or notice under Part 3 of that Act or the issue, modification, renewal or service of a warrant under Chapter 2 of Part 6 of that Act;

(czb)conduct of a kind which may be required or permitted by a retention notice under Part 4 of that Act (retention of communications data) but excluding any conduct which is subject to review by the Information Commissioner;

(czc)the giving or varying of a retention notice under that Part of that Act;

(czd)conduct of a kind which may be required or permitted by a warrant under Part 5 or Chapter 3 of Part 6 of that Act (equipment interference);

(cze)the issue, modification, renewal or service of a warrant under Part 5 or Chapter 3 of Part 6 of that Act;

(czf)the issue, modification, renewal or service of a warrant under Part 7 of that Act (bulk personal dataset warrants);

(czg)the giving of an authorisation under section 219(3)(b) (authorisation for the retention, or retention and examination, of material following expiry of bulk personal dataset warrant);

(czh)the giving or varying of a direction under section 225 of that Act (directions where no bulk personal dataset warrant required);

(czi)conduct of a kind which may be required by a notice under section 252 or 253 of that Act (national security or technical capability notices);

(czj)the giving or varying of such a notice;

(czk)the giving of an authorisation under section 152(5)(c) or 193(5)(c) of that Act (certain authorisations to examine intercepted content or protected material);

(czl)any failure to—

(i)cancel a warrant under Part 2, 5, 6 or 7 of that Act or an authorisation under Part 3 of that Act;

(ii)cancel a notice under Part 3 of that Act;

(iii)revoke a notice under Part 4, or section 252 or 253, of that Act; or

(iv)revoke a direction under section 225 of that Act;

(czm)any conduct in connection with any conduct falling within paragraph (c), (czb), (czd) or (czi);]

[F315(ca)the carrying out of surveillance by a foreign police or customs officer (within the meaning of section 76A);]

(d)[F316other] conduct to which Part II applies;

(e)the giving of a notice under section 49 or any disclosure or use of a key to protected information;

(f)any entry on or interference with property or any interference with wireless telegraphy.

(6)For the purposes only of subsection (3), nothing mentioned in paragraph (d) or (f) of subsection (5) shall be treated as falling within that subsection unless it is conduct by or on behalf of [F317an immigration officer or] a person holding any office, rank or position with—

(a)any of the intelligence services;

(b)any of Her Majesty’s forces;

(c)any police force;

[F318(ca)the Police Investigations and Review Commissioner;]

[F319(d)the National Crime Agency;]

[F320(dza)the Competition and Markets Authority;]

F321(da). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F322(f)the Commissioners for Her Majesty's Revenue and Customs;]

and section 48(5) applies for the purposes of this subsection as it applies for the purposes of Part II.

[F323(6A)Subsection (6) does not apply to anything mentioned in paragraph (d) or (f) of subsection (5) which also falls within paragraph (czd) of that subsection.]

(7)For the purposes of this section conduct takes place in challengeable circumstances if [F324it is conduct of a public authority and]

(a)it takes place with the authority, or purported authority, of anything falling within subsection (8); or

(b)the circumstances are such that (whether or not there is such authority) it would not have been appropriate for the conduct to take place without it, or at least without proper consideration having been given to whether such authority should be sought;

but [F325, subject to subsection (7ZA),] conduct does not take place in challengeable circumstances to the extent that it is authorised by, or takes place with the permission of, a judicial authority.

[F326(7ZA)The exception in subsection (7) so far as conduct is authorised by, or takes place with the permission of, a judicial authority does not include conduct authorised by an approval given [F327by a Judicial Commissioner or under section 32A of this Act or section 75 of the Investigatory Powers Act 2016].]

[F328(7ZB)For the purposes of this section conduct also takes place in challengeable circumstances if it is, or purports to be, conduct falling within subsection (5)(bb), (cza), (czc), (cze), (czf), (czg), (czh), (czj), (czk) or (czl) or (so far as the conduct is, or purports to be, the giving of a notice under section 49) subsection (5)(e).]

[F329(7A)For the purposes of this section conduct also takes place in challengeable circumstances if it takes place, or purports to take place, under section 76A.]

(8)The following fall within this subsection—

[F330(a)a warrant under Part 2, 5, 6 or 7 of the Investigatory Powers Act 2016;

(b)an authorisation or notice under Part 3 of that Act;

(ba)a retention notice under Part 4 of that Act;

(bb)a direction under section 225 of that Act;

(bc)a notice under section 252 or 253 of that Act;]

(c)an authorisation under Part II of this Act or under any enactment contained in or made under an Act of the Scottish Parliament which makes provision equivalent to that made by that Part;

(d)a permission for the purposes of Schedule 2 to this Act;

(e)a notice under section 49 of this Act; or

(f)an authorisation under section 93 of the M20Police Act 1997.

(9)Schedule 3 (which makes further provision in relation to the Tribunal) shall have effect.

[F331(9A)In subsection (5)(ba) the reference to obtaining secondary data from communications transmitted by means of a postal service or telecommunication system is to be read in accordance with section 16 of the Investigatory Powers Act 2016.]

(10)In this section—

(a)references to a key and to protected information shall be construed in accordance with section 56;

(b)references to the disclosure or use of a key to protected information taking place in relation to a person are references to such a disclosure or use taking place in a case in which that person has had possession of the key or of the protected information; and

(c)references to the disclosure of a key to protected information include references to the making of any disclosure in an intelligible form (within the meaning of section 56) of protected information by a person who is or has been in possession of the key to that information;

and the reference in paragraph (b) to a person’s having possession of a key or of protected information shall be construed in accordance with section 56.

(11)In this section “judicial authority” means—

(a)any judge of the High Court or of the Crown Court or any Circuit Judge;

(b)any judge of the High Court of Justiciary or any sheriff;

(c)any justice of the peace;

(d)any county court judge or resident magistrate in Northern Ireland;

(e)any person holding any such judicial office as entitles him to exercise the jurisdiction of a judge of the Crown Court or of a justice of the peace.

Textual Amendments

F308Words in s. 65(2)(b) omitted (21.1.2011) by virtue of Identity Documents Act 2010 (c. 40), ss. 12, 14(2), Sch. para. 14(2)

F309Words in s. 65(2)(c) substituted (22.7.2020) by Investigatory Powers Act 2016 (c. 25), ss. 243(1)(a), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2020/766, reg. 2(b)

F310Word at the end of s. 65(3)(c) inserted (21.1.2011) by Identity Documents Act 2010 (c. 40), ss. 12, 14(2), Sch. para. 14(3)(a)

F311S. 65(3)(ca)(cb) and word omitted (21.1.2011) by virtue of Identity Documents Act 2010 (c. 40), ss. 12, 14(2), Sch. para. 14(3)(b)

F312S. 65(4A) omitted (21.1.2011) by virtue of Identity Documents Act 2010 (c. 40), ss. 12, 14(2), Sch. para. 14(4)

F314S. 65(5)(c)-(czm) substituted for s. 65(5)(c) (12.3.2018 for specified purposes, 27.6.2018 for specified purposes, 22.8.2018 for specified purposes, 5.2.2019 for specified purposes, 22.7.2020 in so far as not already in force) by Investigatory Powers Act 2016 (c. 25), ss. 243(1)(c), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/341, reg. 2(c)(i); S.I. 2018/652, reg. 11(e)(ii); S.I. 2018/873, reg. 3(g)(i); S.I. 2019/174, reg. 2(g); S.I. 2020/766, reg. 2(b)