10.—(1) This section applies where any protected information—

(a) has come, or is likely to 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;

(b) has come, or is likely to come, into the possession of any person by
means of the exercise of a statutory power to intercept
communications or to interfere with wireless telegraphy;

(c) 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

(d) has, by any other lawful means not involving the exercise of
statutory powers, come into the possession of an intelligence
agency, the police or the customs and excise.

(2) If it appears to any person with the appropriate permission under
Schedule 1 that a key to the protected information—

(a) is in the possession of any person, and

(b) cannot reasonably be obtained by the person with that permission
without the giving of a notice under this section,

the person with that permission may, by notice to the person appearing to
him to have possession of the key, require the disclosure of the key.

(3) A notice under this section requiring the disclosure of any key—

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

(b) subject to paragraph (a), may take such form and be given in such
manner as the person giving it thinks fit; and

(c) must specify the manner in which, and time by which, the disclosure is
to be made.

(4) A notice under this section shall not require the disclosure of a key 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.

(5) 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.

(6) Schedule 1 (definition of the appropriate permission) shall have effect.

11.—(1) Subsection (2) applies where—

(a) a person is required by a section 10 notice to disclose a key to any protected information; and

(b) compliance with the requirement by the provision of the information
in an intelligible form is authorised for the purposes of this section.

(2) The person required to disclose the key—

(a) may use it to obtain access to the protected information, or to put
that information into an intelligible form; and

(b) shall be taken for the purposes of this Part to have complied with the
requirement to disclose the key if, by the time by which he is
required to disclose it to any person, he has instead provided that
person with the information in an intelligible form.

(3) Compliance with a requirement to disclose a key to protected
information by the provision of the information in an intelligible form is
authorised for the purposes of this section unless—

(a) a person who for the purposes of Schedule 1 granted the permission
for the giving of a section 10 notice in relation to that information, or

(b) a person whose permission for the giving of a such a notice in
relation to that information would constitute the appropriate
permission under that Schedule,

12.—(1) A person is guilty of an offence if he fails to comply, in
accordance with any section 10 notice, with any requirement of that notice to
disclose a key to protected information.

(2) In proceedings against any person for an offence under this section, i
shall be a defence (subject to subsection (4)) for that person to show—

(a) 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; but

(b) that he did, before that time, make a disclosure, to the person to
whom he was required to disclose the key, of all such information in
is possession as was required by that person to enable possession
of the key to be obtained.

(3) In proceedings against any person for an offence under this section it
shall be a defence (subject to subsection (4)) for that person to show—

(a) that it was not reasonably practicable for him to make a disclosure of
the key before the time by which he was required to do so;

(b) where the key was not in his possession at that time, that it was not
reasonably practicable for him, before that time, to make such a
disclosure as is mentioned in subsection (2)(b); and

(c) that as soon after that time as it was reasonably practicable for him to
make a disclosure of the key or (if earlier) of sufficient information to
enable possession of the key to be obtained, he made such a
disclosure to the person to whom he was required to disclose the
key.

13.—(1) This section applies where a section 10 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 person who makes a disclosure to any other person of anything that
he is required by the notice to keep secret shall be guilty of an offence.

(3) 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.

(4) 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 of advice by the adviser to any client of
his; 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.

(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
the disclosure was made by a legal adviser in contemplation of, or in
connection with or for the purposes of, any proceedings before a court or
tribunal.

(6) Neither subsection (4) nor subsection (5) applies in the case of a
disclosure made with a view to furthering any criminal purpose.

(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 authorised by or on behalf of either the person who gave
the notice or a person who—

(a) is in possession of the protected information to which the notice
relates; and

(b) came into possession of that information as mentioned in section
10(1).

14.—(1) A person guilty of an offence under section 12 shall be liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding two
years or a fine, or to both;

(b) on summary conviction, to imprisonment for a term not exceeding
six months or a fine not exceeding the statutory maximum, or to
both.

(2) A person guilty of an offence under section 13 shall be liable—

(a) on conviction on indictment, to imprisonment for a term not
exceeding five years or a fine, or to both;

(b) on summary conviction, to imprisonment for a term not exceeding
six months or a fine not exceeding the statutory maximum, or to
both.

(3) In section 9(4) of the Interception of Communications Act 1985
(offences in proceedings for which the restriction on the admissibility of
evidence of warrant etc. is not to apply) after paragraph (bb) there shall be
inserted—

15.—(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;

(c) the Commissioners of Customs and Excise; and

(d) every person whose officers or employees include persons with
duties that involve the giving of section 10 notices.

(2) It shall be the duty of each of the persons to whom this section applies to
ensure, in relation to persons under his control who obtain possession of
keys to protected information by means of the exercise of powers conferred
by this Part, that such arrangements are in force as he considers necessary for
securing—

(a) that a key disclosed in pursuance of a section 10 notice is used for
obtaining access to, or putting into an intelligible form, only the
protected information in relation to which the power to give the
notice was exercised;

(b) that the uses to which a key so disclosed is put, and the
consequences of the use of the key, are reasonable and
proportionate having regard to the uses to which the person using
the key is entitled to put the protected information to which it
relates;

(c) that the requirements of subsection (3) are satisfied in relation to any
key so disclosed;

(d) that all records of a key so disclosed are destroyed as soon as the key is
no longer needed for the purposes for which its disclosure was
required.

(3) The requirements of this subsection are satisfied in relation to any key
disclosed in pursuance of a section 10 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 purposes for which its
disclosure was required.

(4) In this section "chief officer of police" means any of the following—

(a) the chief constable of a police force maintained under or by virtue of
section 2 of the Police Act 1996 or section 1 of the Police
(Scotland) Act 1967; .

(b) the Commissioner of Police of the Metropolis;

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

(d) the Chief Constable of the Royal Ulster Constabulary;

(e) the Director General of the National Criminal Intelligence Service;

16.—(1) The Secretary of State shall issue a code of practice in connection
with the exercise or performance by persons (other than the Commissioner
and the Tribunal) of their powers and duties under this Part.

(2) Before issuing a code of practice under subsection (1), the Secretary of
State shall—

(a) prepare and publish a draft of that code; and

(b) consider any representations made to him about the draft;
and the Secretary of State may incorporate in the code finally issued any
modifications made by him to the draft after its publication.

(3) The Secretary of State shall lay before both Houses of Parliament any
draft code of practice prepared by him under this section.

(4) A code of practice issued by the Secretary of State under this section
shall not be brought into force except in accordance with an order made by
the Secretary of State by statutory instrument.

(5) A statutory instrument containing an order under subsection (4) shall
not be made unless a draft of the order has been laid before Parliament and
approved by a resolution of each House.

(6) An order under subsection (4) may contain such transitional provisions
and savings as appear to the Secretary of State to be necessary or expedient in
connection with the bringing into force of the code brought into force by that order.

(7) The Secretary of State may from time to time—

(a) revise the whole or any part of a code issued under this section; and

(b) issue the revised code.

(8) Subsections (2) to (6) shall apply (with appropriate modifications) in
relation to the issue of any revised code under this section as they apply in
relation to the first issue of such a code.

(9) A person exercising or performing any power or duty under this Part
shall, in so doing, have regard to the code of practice for the time being in
force under this section.

(10) A failure on the part of any person to comply with any provision of
the code of practice for the time being in force under this section shall not of
itself render him liable to any criminal or civil proceedings.

The Commissioner. [j206]

17.—(1) The Prime Minister shall appoint a person who holds or has held a
high judicial office (within the meaning of the Appellate Jurisdiction Act
1876) to carry out the functions of—

(a) keeping under review the exercise and performance by the Secretary
of State of his powers and duties under this Part;

(b) keeping under review the adequacy of the arrangements by reference
to which the Secretary of State seeks to discharge his duty under
section 15; and

(c) giving to the Tribunal all such assistance as the Tribunal may require
for the purpose of enabling them to carry out their functions under
this Part.

(2) The Commissioner shall hold office in accordance with the terms of
his appointment; and there shall be paid to him out of money provided by
Parliament such allowances as the Treasury may determine.

(3) It shall be the duty of—

(a) every person holding office under the Crown,

(b) every member of an intelligence agency,

(c) every official of a government department,

(d) every person engaged in the business of the Post Office or in the
running of a public telecommunication system (within the meaning
of the Telecommunications Act 1984),

(e) every person by or to whom a section 10 notice has been given, and

(f) every officer or employee of a person whose officers or employees
include persons with duties that involve the giving of section 10
notices,

to disclose or provide to the Commissioner such documents and information
as he may require for the purpose of enabling him to carry out his functions
under this section.

(4) If at any time it appears to the Commissioner—

(a) that there has been a contravention of the provisions of this Part
which has not been the subject of a report made by the Tribunal
under section 18(4), or

(b) that any arrangements by reference to which the Secretary of State
has sought to discharge his duty under section 15 have proved
inadequate,

he shall make a report to the Prime Minister with respect to that
contravention or those arrangements.

(5) As soon as practicable after the end of each calendar year, the
Commissioner shall make a report to the Prime Minister with respect to the
carrying out of his functions under this section.

(6) The Prime Minister shall lay before each House of Parliament a copy
of every annual report made by the Commissioner 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 Prime Minister, after consultation with the
Commissioner, that the publication of any matter in an annual report would
be contrary to the public interest or prejudicial to—

(a) national security,

(b) the prevention or detection of serious crime,

(c) the economic well-being of the United Kingdom, or

18.—(1) There shall be a tribunal for hearing the following complaints—

(a) complaints about the manner in which functions under this Part are
carried out in relation to cases in which the permission of the
Secretary of State is required for the giving of a section 10 notice;
and

(b) complaints that a person has suffered detriment as a consequence of
any prohibition or restriction, by virtue of section 9 of the
Interception of Communications Act 1985 (matters of which
evidence cannot be adduced), on his relying in any proceedings
before a court or tribunal on anything done under this Part or on
any contravention of this Part.

(2) If—

(a) an interested party makes a complaint to the Tribunal in respect of a
section 10 notice for the giving of which the permission of the
Secretary of State was or should have been granted under this Part,
and

(b) the complaint is not one appearing to the Tribunal to be frivolous or
vexatious,

the Tribunal shall hear and determine the complaint.

(3) Subject to rules under paragraph 3(1)(f) of Schedule 2, the Tribunal
shall have power, on determining a complaint under this section, to make
such award of compensation or other order as they think fit.

(4) On making a determination under this section, the Tribunal shall send a
report of their determination—

(a) in a case in which they have determined that the Secretary of State
has failed to carry out his functions in relation to a section 10
notice in accordance with the provisions of this Part, to the Prime
Minister; and

(b) in any case, to the Commissioner.

(5) Section 9 of the Interception of Communications Act 1985 shall not
apply to proceedings before the Tribunal.

(6) Schedule 2 (which makes provision about the constitution and
procedure of the Tribunal) shall have effect.

(7) In this section "interested party" means a person who—

(a) is or has been in possession of any protected information the key to
which has been required to be disclosed in pursuance of a section
10 notice, or a notice purporting to be such a notice;

(b) has been required by a section 10 notice, or a notice purporting to be
such a notice, to disclose any key to protected information; or

19.—(1) In this Part—

"the Commissioner" means the Commissioner appointed under section
17;

"the customs and excise" means any person commissioned by the
Commissioners of Customs and Excise;

"electronic signature" means anything in electronic form which—

(a) is incorporated into, or otherwise logically associated
with, any electronic data;

(b) is generated by the signatory or other source of the data;
and

(c) is used for the purpose of facilitating, by means of a link
between the signatory or other source and the data, the
establishment of the authenticity or integrity of the data, or of
both;

"GCHQ" has the same meaning as in the Intelligence Services Act 1994;
"Her Majesty’s forces" has the same meaning as in the Army Act 1955;
"intelligence agency" means the Security Service, the Secret Intelligence
Service or GCHQ;

"key", in relation to any electronic data, means any code, password,
algorithm, key or other data the use of which (with or without other
keys)—

(a) allows access to the electronic data, or

(b) facilitates the putting of the data into an intelligible form;

"the police" means—

(a) any constable;

(b) the Commissioner of Police of the Metropolis or any
Assistant Commissioner of Police of the Metropolis;

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

"protected information" means any electronic data which, without the
key to the data—

(a) cannot, or cannot readily, be accessed, or

(b) cannot, or cannot readily, be put into an intelligible form;

"section 10 notice" means a notice under section 10;

"statutory", in relation to any power or duty, means conferred or
imposed by or under any enactment or subordinate legislation;

"the Tribunal" means the Tribunal established under section 18;

"warrant" includes any instrument (however described) which has an
effect equivalent to that of a warrant;

"wireless telegraphy" and, in relation to wireless telegraphy, "interfere"
have the same meanings as in the Wireless Telegraphy Act 1949.

(2) References in this Part to a person’s having 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; and