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Publication - Guidance

Equipment interference code of practice

Published: 20 Dec 2017

Code of practice issued under section 24 of the Regulation of Investigatory Powers (Scotland) Act 2000.

51 page PDF

470.5kB

51 page PDF

470.5kB

Contents
Equipment interference code of practice
6 Record‑keeping and error reporting

51 page PDF

470.5kB

6 Record‑keeping and error reporting

Records

6.1 Records must be available for inspection by the IPC and retained to allow the Investigatory Powers Tribunal, established under Part IV of RIPA, to carry out its functions. The Tribunal will consider complaints made up to one year after the conduct to which the complaint relates and, where it is equitable to do so, may consider complaints made more than one year after the conduct to which the complaint relates (see section 67(5) of RIPA), particularly where continuing conduct is alleged. Although records are only required to be retained for at least three years, it is therefore desirable, if possible, to retain records for up to five years. The following information relating to all warrants for equipment interference should be centrally retrievable for at least three years:

  • all applications made for warrants and for renewals of warrants;
  • the date when a warrant is given;
  • whether a warrant is approved under urgency procedures;
  • where any application is refused, the grounds for refusal as given by the law enforcement chief or Judicial Commissioner;
  • the details of what targeted equipment interference has occurred;
  • the result of periodic reviews of the warrants;
  • the date of every renewal;
  • the date when any instruction was given by the Judicial Commissioner to cease the equipment interference; and
  • where relevant, the directions issued by the Judicial Commissioner should they refuse to approve an urgent warrant.

6.2 Records should also be kept of the arrangements by which the requirements of section 129 of the Act in relation to minimisation of copying and distribution of material and destruction of material are to be met.

6.3 The relevant agencies should keep the following records:

  • all advice provided to the law enforcement chief to support their consideration as to whether to issue or renew the targeted equipment interference warrant; and
  • where the issuing of any application is not approved by the Judicial Commissioner, the grounds for refusal as given by the Judicial Commissioner and any associated advice/applications to the IPC if there is an appeal.

6.4 The relevant agencies must also keep a record of the information below to assist the IPC in carrying out his or her statutory functions.

6.5 For the purposes of record‑keeping requirements a targeted equipment interference warrant should be taken as referring to a targeted equipment interference warrant issued under part 5 of the Act. In recording this information, each relevant agency must keep a record of the number of:

  • applications made by or on behalf of the relevant agencies for a targeted equipment interference warrant;
  • applications for a targeted equipment interference warrant that were refused by a law enforcement chief;
  • decisions to issue a targeted equipment interference warrant that were refused by a Judicial Commissioner;
  • occasions that a referral was made by a law enforcement chief to the IPC, following the decision of a Judicial Commissioner to refuse a targeted equipment interference warrant;
  • targeted equipment interference warrants issued by the law enforcement chief and approved by a Judicial Commissioner;
  • targeted equipment interference warrants authorised by the law enforcement chief or appropriate delegate;
  • targeted equipment interference warrants authorised by the law enforcement chief or appropriate delegate that were subsequently refused by a Judicial Commissioner;
  • targeted equipment interference warrants that were renewed by the law enforcement chief and approved by a Judicial Commissioner;
  • targeted equipment interference warrants that the Judicial Commissioner refused to approve the renewal of;
  • targeted equipment interference warrants that were cancelled; and
  • targeted equipment interference warrants extant at the end of the calendar year.

6.6 For each targeted equipment interference warrant issued by the law enforcement chief and approved by a Judicial Commissioner (including warrants issued and approved in urgent cases), the relevant agency must also keep a record of the following:

  • the statutory purpose(s) specified on the warrant;
  • the details of major and minor modifications made to the warrant.

Errors

6.7 This section provides information regarding errors, which are not considered to meet the threshold of a criminal or civil offence.

6.8 A relevant error which must be reported to the IPC is defined in section 231 of the Act and for these purposes includes an error:

  • by a relevant agency or other such persons assisting to give effect to a warrant in complying with any requirements which are imposed on it by virtue of this Act or any other enactment and which are subject to review by a Judicial Commissioner; and
  • of a description identified for this purpose in a code of practice or in guidance provided by the Commissioner.

6.9 Where an error has occurred but the relevant agency has been acting in good faith, this does not constitute a relevant error on the part of the agency but should still be brought to the attention of the IPC. Situations may arise where a targeted equipment interference warrant has been obtained or modified as a result of the relevant agency having been provided with information relating to equipment – for example, by another domestic intelligence agency, police force or telecommunications operator – which later proved to be incorrect, due to an error on the part of the person providing the information, but on which the relevant agency acted in good faith. Whilst these actions do not constitute a relevant error on the part of the relevant agency, such occurrences should be brought to the attention of the Commissioner.

6.10 Proper application of the Act and thorough procedures for operating its provisions, including, for example, the careful preparation and checking of warrants, modifications and schedules, should reduce the scope for making errors.

6.11 Any failure by the relevant agency or such other persons providing assistance to apply correctly the process set out in this code will increase the likelihood of an error occurring.

6.12 All errors described in paragraph 6.8 of this code must be reported to the IPC. Errors can have very significant consequences on an affected individual's rights.

6.13 Reporting of errors will draw attention to those aspects of the targeted equipment interference process that require further improvement to eliminate errors and the risk of undue interference with any individual's rights.

6.14 An error can only occur after targeted equipment interference has commenced. This section of the code cannot provide an exhaustive list of possible errors. Examples could include:

  • targeted equipment interference as described in the Act has, or is believed to, have occurred without valid authorisation;
  • targeted equipment interference has taken place that would not have occurred but for conduct or an omission of the part of a member of the relevant agency or telecommunications operator;
  • human error, such as incorrect transposition of equipment information from an application to a warrant or schedule which leads to the wrong material being acquired;
  • warranted targeted equipment interference has taken place on a piece of equipment but the material does not in the event relate to the intended subject where information available at the time of seeking a warrant could reasonably have indicated this;
  • a material failure to adhere to the arrangements in force under section 129 of the Act relating to material obtained by targeted equipment interference. For example:
    • over-collection caused by software or hardware errors;
    • unauthorised selection of communications;
    • unauthorised or incorrect disclosure of material; or
    • failure to effect the cancellation of targeted equipment interference.

6.15 When an error has been made, the relevant agency or other person which made the error (e.g. the telecommunications operator) must report the error to the IPC as soon as reasonably practicable after it has been established an error has occurred. Where the full facts of the error cannot be ascertained within that time, an initial notification must be sent with an estimated timescale for the error being reported in full.

6.16 If the relevant agency discovers a telecommunications operator error they should inform the IPC and the telecommunications operator of the error straight away to enable the telecommunications operator to investigate the cause of the error and report it themselves.

6.17 The report sent to IPC in relation to any error must include details of the error, the cause, the amount of material relating to the error obtained or disclosed, any unintended collateral intrusion, any analysis or action taken, whether the material has been retained or destroyed and, a summary of the steps taken to prevent recurrence. Wherever possible, technical systems should incorporate functionality to minimise errors. A senior person within the organisation must undertake a regular review of errors.

6.18 As set out at section 231(9) of the Act, the IPC will keep under review the definition of relevant errors. The IPC may also issue guidance as necessary, including guidance on the format of error reports.

Serious errors

6.19 Section 231 of the Act states that the IPC must inform a person of any relevant error relating to that person which the IPC considers to be a serious error and that it is in the public interest for the person concerned to be informed of the error.

6.20 The IPC cannot consider an error serious unless the IPC considers the error has caused significant prejudice or harm to the person concerned. In circumstances where a relevant error is deemed to be of a serious nature, the IPC must also decide whether he or she considers that it is in the public interest for the person concerned to be informed of the error. The IPC may therefore investigate the circumstances that led to the error and assess the impact of the interference on the affected individual's rights. The fact that there has been a breach of a person's Convention rights (within the meaning of the Human Rights Act 1998) is not sufficient by itself for an error to be a serious error.

6.21 In making a decision, the IPC must in particular consider:

  • the seriousness of the error and its effect on the person concerned; and
  • the extent to which disclosing the error would be contrary to the public interest or prejudicial to the prevention or detection of serious crime.

6.22 Before making a decision, the IPC must ask the relevant agency which has made the error to make submissions on the matters above.


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