Interception of Communication

RIPA and Police Act outline the powers the government can use to monitor and gather information on citizens.

This is being able to read or listen to other people’s communication via a communication method e.g telephone.

Prior to 1985: There was no law to control interception of communication, so no penalties for abuse.  There was only policy to govern its use. 

Malone v Commissioner of Police: There was no law preventing interception of communication so the breach of privacy in the case was allowed.

Malone v UK: The Court of Human Rights decide that the UK has infringed Art 8 because the power of interception of communication was not prescribed by law, as was required to justify interfering with it as a qualified right.

So Parliament passed: Interception of Communication Act 1985

·         S.1 of Act: interception communication was an offence

·         S.2 of Act: Secretary of State must grant warrant for interception of communication to be legal.

·         S.7 of Act: Created a Tribunal to hear complaints where individuals believed their communication was intercepted illegally.

·         S.8 of Act: Established independent commissioners to review issuing of warrants and report to Parliament.

ICA provided better control over interception of communication; it made it a crime and required a warrant, and so justification, for legal activity, and also created a venue for complaint.

BUT: it didn’t cover all forms of communication, planting of bugs or long-range directional microphones.

Halford v UK: This case shows the limited scope of the Act; an internal phone line was not protected by the Act.

ICA was repealed by RIPA.

S.2(1) of RIPA makes it clear that all systems that offer a telecommunication service, including those offered by the private sector e.g. internal phone lines (as long as they have an outside line), are covered by the Act.  This shows an improvement on ICA.

However, the Act does not contain provisions to recognise changes in technology.  So, there is no protection for future communication developments. 

S.1 of RIPA: it is a criminal offence to intercept communication.  This section adds civil liability.

RIPA confirms that evidence gained through intercept of communication cannot be used in court except in rare cases, such as those concerning legality of interception of communication or under the Official Secrets Act.

S.5(3): Must apply to Secretary of State for a warrant to legally intercept communication.  The Secretary of State will grant it where it is proved to be for:

·         National Security; OR

·         The Purpose of Preventing or Detecting Serious Crime; OR

·         For the Purpose of Safe Guarding the Economic Well Being of the Country

S.65: Created tribunal to hear complaints on interception of communication and human rights claims.

·         S.5(2): States the Secretary of State won’t issue a warrant unless he thinks it is proportionate, while S.5(4) requires him to consider if the information can be gathered through other means.  This is Effective: ensure warrants are issued for a reason and when necessary, and ensures proportionality.

·         S.57(8): Created the Interception of Communication Commissioner, who checks warrants.  This is Effective: The double check means only justifiable warrants should be active.

·         The check happens after the issue of the warrant.  This is Ineffective: It allows for unjustifiable warrants to be used before they are checked.

The communication commissioner is given a list of warrants, and uses a sampling method to select which warrants will be checked.  This is Ineffective: Potentially illegal warrants are not checked because not every warrant is checked

·         The Commissioner has no way to check the list is complete.  This is Ineffective: Illegal warrants may be left off of the list.

·         The Commissioner can only report illegal warrants to the Prime Minister-he cannot do anything himself.  This is Ineffective: It would be quicker if the Commissioner had the power to quash warrants himself.

·         No limit on renewal of warrants.  This is Ineffective: If a warrant has been active for a period of time and there is no evidence of an issue, than the warrant should be illegal because there is no justification for it.

·         S.8(1) states warrants should be precise.  BUT; ‘a person’ can equal ‘any organisation and any association or combination of persons’.  This is Ineffective: Other people may be affected by the warrant unjustifiably.

·         Sir Paul Kennedy, the Interception of Communication Commissioner, in his 2007 annual report found that more than 1000 bugging operations were flawed and innocent people were tapped because of administration errors.  This is Ineffective: The report is a review, but it shows that the control mechanisms put in place are ineffective because so many errors are made.

·         In the last 9 months of 2006: 253,557 applications to intercept communication.  Most were approved.  Sir Paul Kennedy reported an average of 960 applications a day over 264 day period.  Ineffective: The statistics report shows an awareness of the issues, but also demonstrates that control mechanisms are not effective because of the sheer amount of applications.

Kennedy v UK: The Court of Human Rights decided that sufficient safeguards existed and individuals’ rights were not being breached.  The Court listed several positive assessments.

1.    1.  Removing Art 8 was a part of the legitimate aim of protecting national security, economic well-being of the UK and preventing crime.

2.    2.  Actions were prescribed by law; RIPA and Codes of Practice. RIPA was accessible, clear and defined.

3.     3. Adequate safeguards existed in processing and destroying the information gathered from intercepted communication.

4.   4.   There was organised supervision of renewing and cancelling of warrants by the Secretary of State.

1.    5.  The Court of Human Rights praised the need for a warrant to intercept communication, as this was non-existent in other countries.

2.    6.  The Codes of Practice limit the number of people who can access interception of communication information.

3.   7.   An independent Commissioner supervises and reports to the Prime Minister in a public document that goes before Parliament.  The Court of Human Rights felt this role was particularly valuable.

4.     8. The Court of Human Rights also like the extensive nature of the Investigatory Powers Tribunal.  It considered how anyone could apply, as well as the independent and impartial nature of the tribunal, its power to order documents to be disclosed, its power to quash interception of communication warrants, ability to require destruction of material and order compensation.  The publication of Tribunal Rulings enhance the level of scrutiny.