The briefing Series 1, Edition 7 – August 2009

© Christopher Bernard/Istock © andipantz/Istock © Istock Police interception of communications This Police Foundation Briefing looks at police interception of communications and identifies some of the key issues which arise from the use of these powers.

But the police also use covert, hidden forms of Introduction surveillance where they have identified a suspect and need to gather intelligence Technological advances in surveillance have without the knowledge of that person. This given the police access to a wide range of may include the undercover wearing of a intelligence, from stored database information recording device, bugging private locations to CCTV footage. Most of this type of such as a suspect’s house or car, the use of surveillance is discernable – CCTV cameras informants and the interception of telephone are visible to the public and suspects are calls, post and email. The information informed when DNA or other details are obtained is used by the police in a number of stored on the Police National Computer. ways; for the investigation of cases, including

The briefing – Interception of communications 1 the discovery of leads or planned criminal The Home Secretary should also consider the activity; to disrupt or hinder criminal plots; or to privacy of those people who are not subject to acquire a broader understanding of large- a warrant but who might nonetheless be on the scale criminal activity such as terrorism. receiving end of a telephone call. All intercepting bodies must also follow the The police have access, without a warrant, to Interception of Communications Code of communications data such as telephone Practice (2) . numbers, billing information, websites accessed and mobile phone locations. These The warrant can require any UK based postal, pieces of information can provide intelligence Internet Service Provider or telephone about the movements and associates of a company to intercept communications and to suspect. When more intelligence is needed a provide access to current as well as stored warrant can be granted to allow the police to communications. A limited number of access the content of a suspect’s authorised bodies can apply for the warrant, communication without that person’s including the police, the security services and knowledge. This Police Foundation Briefing HM Revenue and Customs. An interception looks at the police use of interception of a warrant is valid for 3 months. Warrants for communication’s content (1) . It examines the serious crime can be renewed for a further 3 structure and regulation of interception and months, while warrants to protect national some of the main concerns with the present security or secure economic well-being can be system, including the use of intercepted renewed for a further 6 months. The person material as evidence in court. whose communication is being intercepted will be unaware of the interception and under The legal framework Section 19 of RIPA it is actually an offence to reveal the existence and details of an Where there is evidence of a suspect’s interception warrant so any communications involvement in serious crime or terrorism, the service supplier must also keep the police can apply for a warrant to intercept that information secret. suspect’s communications allowing all communication (email, post, telephone calls In 2007 2026 interception warrants and mobile calls) to be read, seen or heard. (including telephone and postal) were The Home Secretary may grant the warrant granted under RIPA in England, Wales and under Section 5 of the Regulation of Scotland(3). Investigatory Powers Act (RIPA) 2000 for any of the following three purposes: In professional communications, such as G In the interests of national security between lawyer and client or doctor and patient, G To prevent or detect serious crime confidentiality must be maintained unless the G To safeguard the economic interests of the communication is deemed to be for a criminal UK purpose. Currently, unless required by national The issuing of the warrant must comply with security, communications by MPs cannot be the Human Rights Act 1998, which requires intercepted (the so-called Wilson Doctrine). This that the Home Secretary is satisfied that the practice has been criticised by the Interception interception is necessary and proportionate. of Communications Commissioner on the basis

2 The briefing – Interception of communications that it allows MPs potentially to engage in Currently, RIPA warrants are authorised by criminal activity without the risk of being the Secretary of State rather than a judge. investigated and thereby sets them above Although a judge (the Interception of the law. The Wilson Doctrine was set out in Communications Commissioner) does 1966 by the then Prime Minister, Harold review past authorisations and prepares a Wilson and in September 2007, in response report, this only occurs after interceptions to a written parliamentary question, Prime have taken place. There are concerns that, Minister confirmed the with an executive authorised system, an Doctrine was still valid (4) . excessive number of warrants may be granted, with the danger of political In 2005 and 2006 Scotland Yard monitored considerations taking precedence. The conversations between MP and criteria the Home Secretary must consider his constituent and childhood friend Babar are based on relatively abstract notions such Ahmed. The conversations were taped in as economic interests and national security prison, where Ahmed was being held on posing concerns that the executive is terrorist charges. An inquiry into the taping insufficiently independent to balance the was conducted by the Chief Surveillance considerations of individual and state. Commissioner, Sir Christopher Rose (5) , which held that the conversation was not covered by the Wilson Doctrine as it was a Police use of interception face to face conversation and the correct procedures had been followed. The The Serious and Organised Crime Agency government has agreed to review the codes (SOCA) carries out interception on behalf of of practice relating to conversations between the police, who see it as an essential tool in an MP and his or her constituents with a the fight against serious crime and terrorism. view to making them confidential however In 2007 the Prime Minister requested a they take place. review of the use of intercept evidence,

which was published in February 2008 (6) . It Section 8(4) of RIPA allows for a particular summarises the main advantages of type of warrant to be granted in situations intercept intelligence as: allowing covert which do not require the name of a person or monitoring of a suspect with little safety risk premises to be stated. It gives permission for for officers; providing a more flexible and mass surveillance of the external traffic of a less intrusive tactic than eavesdropping or telecommunications network. In order for this covert entry into a suspect’s private warrant to be granted, it must comply with the residence; and providing quality leads on Section 5 requirements (national security, proposed criminal activity. Whether in real serious crime or economic well-being) and it time, or after a crime has been committed, must be used to intercept external communications (i.e. communications sent to interception can also help the police identify or received from outside the UK). Section 8(4) suspects or stolen property. The Review warrants are used principally to search for made particular mention of kidnap cases, keywords that might alert security authorities where intercept intelligence has been a to the existence of terrorist cells or terrorist large factor in the low rate of kidnap activity. fatalities (with no kidnap deaths since 1999).

The briefing – Interception of communications 3 There is little published information on how The rationale for this rule is based on the police use interception intelligence or how concerns that the use of such information the operations are carried out due to the could put police and intelligence agencies at necessarily covert nature of the act. National risk by exposing their operational methods or security issues surrounding warrant cases that it could encourage criminals to change make it difficult for the police to demonstrate their style of communication. The use of publicly the value of interception. For similar intercept evidence could also place an reasons, there is also a dearth of independent onerous administrative burden on security research on the effectiveness of intercept and services to keep and produce large amounts in particular its impact in reducing, preventing of evidence and there are also issues, such or detecting crime. Much of what is known is as the right to privacy of the person on the based on anecdote, such as the following other end of the telephone call, that need to quote from Sir Paul Kennedy, Intelligence be considered. Services Commissioner:

“It is my view that during 2006 interception The UK is the only common law country played a vital part in the battle against that does not allow intercept evidence to terrorism and serious crime, and one that be used in court . would have not been achieved by other means. I am satisfied that the intelligence and Human rights groups such as Liberty(8) and law enforcement agencies carry out this task Justice (9) have criticised the ban on intercept diligently and in accordance with the law.” evidence on the basis that it is counter- Similarly, the Chilcot Review quotes SOCA as productive and unnecessary. They claim that stating that interception, together with the use of intercept evidence may make for a communications data, is the single most fairer trial by allowing all the evidence against powerful tool for responding to serious and the accused to be contested. Further, the organised crime and that very few major period of pre-charge detention could criminal investigations do not involve potentially be reduced if the police were able interception, (7) but this cannot be supported by to adduce evidence obtained through any publically available data. interception, rather than needing additional time to find further evidence in support of the Intercept information prosecution case. as evidence The Chilcot Review supports ‘in principle’ the By law, any information gathered by admission of intercept evidence in terrorism interception has been used for criminal and serious crime cases, subject to a number intelligence purposes rather than as evidence of conditions designed to protect security (although there are a few exceptions in a agencies. However, the Review held that narrow range of financial cases). In practice it introducing intercept evidence would only means that this intelligence can help police result in a ‘modest’ increase in successful with their investigation but, even if a suspect prosecutions and listed a number of concerns, admits to a crime on a tapped telephone, such such as the administrative burden and the admissions will not be allowed in court. danger of compromising security techniques

4 The briefing – Interception of communications and agencies. The Review suggested a model before it, the Tribunal holds hearings in private of an intercept evidence system that could be and has attracted criticism for its lack of incorporated into the UK. In response to the transparency (11) . Chilcot Review, the Government has agreed to look again at the possibility of a limited use As the issue of a warrant is secret and the of interception evidence in court, subject to target will not know an interception is satisfying a number of operational occurring, it is difficult for an individual to requirements. contest a warrant. All the safeguards, therefore, apply only after the communication has been intercepted. Similarly, current RIPA oversight and safeguards only check that the correct accountability procedure has been followed in cases where a warrant has been issued. If telephone tapping In order to balance civil liberties and security, takes place illegally without a warrant, this is a RIPA has a number of safeguards and checks matter for the police. The Constitutional with three different commissioners overseeing Committee of the has its use: The Interception of Communications recommended that once surveillance of an Commissioner, the Intelligence Services and individual has been completed, he should be the Chief Surveillance Commissioner. informed and, if the surveillance is found to be Evidence submitted to the House of Lords unlawful, suitably compensated (12) . Review of Surveillance (10) suggests that having three separate bodies could be confusing and The current structure of interception in place in that sometimes conflicting advice is given. The the has been criticised by Commissioners also have minimal resources human rights groups, the judiciary, opposition for investigating claims and limited powers of spokespeople and academics. Recent reports sanction, leading to concerns that the system from The Home Affairs Select Committee (13) of interception is insufficiently accountable. and the House of Lords (14) have raised a number of concerns. There are arguments The Interception of Communications that the UK is out of line with the rest of the Commissioner reports annually on all world in regard to the decision-making and interceptions and refers complaints about accountability of interception, although the surveillance or interception to an Investigatory recommendations in the Chilcot Review (15) and Powers Tribunal. The Tribunal looks at the the House of Lords report, if adopted, may go legality of an interception warrant and awards some way towards remedying this. The compensation where such warrants are balance between civil liberties and security in deemed to have been improperly granted. The the field of interception is particularly delicate Tribunal has been criticised as an inadequate yet, due to the need for the investigation to safeguard since it can only investigate cases remain under cover, the process and analysis where a warrant for interception has been behind the decision to intercept a granted, rather than unauthorised communication also has to be conducted out interceptions. Further, the Tribunal’s decision of sight, so currently any safeguard checks cannot be challenged in the courts. Due to the can only take place after the interception has covert and delicate nature of the information occurred.

The briefing – Interception of communications 5 What happens in other The future countries? The number of communications events per In most Western countries, a dual system year in the UK will rise from around 230 operates, with judicially authorised billion in 2006 to nearly 450 billion in 2016 (17). interceptions for law enforcement purposes and administratively authorised interceptions In anticipation of an increase in the volume for intelligence purposes. There are however and sophistication of communications, the variations on this general approach. In UK Government is currently developing the France, for example, the Prime Minister may Interception Modernisation Programme authorise interceptions for the purposes of (IMP). Initially, proposals included the safeguarding national security, scientific and creation of a single, central database to economic well-being or to prevent terrorism. store information relating to both the data In Ireland, interception for law enforcement and the content of all communications. in serious criminal cases, or where the However, after concerns were raised in security of the state is threatened, is August 2009 over the need to keep access authorised by the executive (Minister of to data and content separate,(18) it was Justice), while in Canada and the US, all announced that this aspect of the IMP had been abandoned (19). interceptions are authorised by a judge, except for cases (in Canada) where there is a threat to national security. Conclusion

In most other countries, intercept evidence is The ability to intercept information is an usually admissible in court and has to be important tool for the police and security disclosed to the defence. The Chilcot services and is used for intelligence and Review considered the use of intercept information gathering in relation to past as evidence abroad and concluded that the well as future criminal and terrorist activity. admission of such evidence did not result in However, the current system of executive higher conviction rates for serious crime rather than judicial warrant authorisation has than in the UK. The Review also raised concerns and adequate safeguards emphasised that EU countries have a should be put in place to address civil liberty different justice system, where a magistrate and privacy issues, which would enable the performs both an investigatory and a judicial police to make fairer and more appropriate function. The model system recommended use of valuable intelligence. Little is by the Chilcot Review is one in which all published about how effective interception is intercept evidence is potentially admissible, in reducing and preventing serious crime as long as the required evidential standards since its covert nature precludes easy are met (16) . access for research purposes, but the use of interception would benefit from independent research, under controlled conditions, to assess its impact as well as its wider repercussions.

6 The briefing – Interception of communications The Government’s approach to surveillance and 5. Report of Investigation by The Rt Hon Sir information gathering has traditionally focused Christopher Rose, Chief Surveillance on the ‘nothing to hide nothing to fear,’ doctrine. Commissioner, (February 2008) Report on Two According to Tony McNulty, former Minister of Visits by Sadiq Khan MP to at State at the Home Office: “If people are involved HM Prison Woodhill Cm 7336, London: The Stationery Office in entirely legitimate activities then they do not 6. The Privy Council Review of Intercept as have to worry about RIPA at all.”(20) However, Evidence – Report to the Prime Minister and the rate at which the methods and authorised Home Secretary, 30 Jan 2008, Cm 7324, users of surveillance systems are expanding London: The Stationery Office has attracted concern from a number of 7. The Privy Council Review of Intercept as sources, including Dame Stella Rimington, the Evidence – Report to the Prime Minister and former head of MI5 (21) .The Information Home Secretary, 30 Jan 2008, Cm 7324, Commissioner’s Office warned in 2006 that London: The Stationery Office expansion of surveillance could have long term 8. Crossman G. et al, (2007) Overlooked: adverse effects on society, undermining trust Surveillance and Personal Privacy in Modern and fostering a climate of suspicion (22) and the Britain, London: Liberty International Commission of Jurists has raised 9. Metcalfe E. (2006) Intercept Evidence: Lifting concerns about the normalisation of exceptional the Ban, Justice laws: that as a society we become accustomed 10. House of Lords Constitution Committee to a new balance whereby laws that were Second Report (February 2009) Surveillance Citizens and the State, London: The Stationery originally enacted to fight serious crime or Office terrorism slowly become part of our everyday 11. Metcalfe E. (2009) Secret Evidence, Justice life, paving the way for ever more restrictive 12. House of Lords Constitution Committee legislation to be enacted (23) . With increasingly Second Report (February 2009) Surveillance sophisticated methods of communication, these Citizens and the State, London: The Stationery concerns are unlikely to recede. Office 13. Home Affairs Committee (June 2008) Fifth Notes and references Report A Surveillance Society?, London: The Stationery Office 1. For information on communications data where the 14. House of Lords Constitution Committee police look at information about a communication, Second Report (February 2009) Surveillance such as numbers dialled, mobile phone location Citizens and the State, London: The Stationery and website access, see the Home Office Office consultation document Protecting the Public in a 15. The Privy Council Review of Intercept as Changing Communications Environment available Evidence – Report to the Prime Minister and at http://www.homeoffice.gov.uk/documents/cons- Home Secretary, 30 Jan 2008, Cm 7324, 2009-communications-data London: The Stationery Office 2. Home Office (2002) Interception of 16. The Privy Council Review of Intercept as Communications: Code of Practice, London: The Evidence – Report to the Prime Minister and Stationery Office Home Secretary, 30 Jan 2008, Cm 7324, 3. Privacy International (18 December 2007) PHR2006 London: The Stationery Office 4. House of Commons Hansard written answers for 17. Home Office estimation, cited in The Privy 12 September 2007, Surveillance, available at Council Review of Intercept as Evidence – http://www.publications.parliament.uk/pa/ Report to the Prime Minister and Home cm200607/cmhansrd/cm070912/ Secretary, 30 Jan 2008, Cm 7324, London: text/70912w0013.htm#07091234000025 The Stationery Office

The briefing – Interception of communications 7 18. For example; LSE Policy Engagement Network (June 2009) Briefing on the Interception Modernisation Programme, LSE 19. Information Commissioner’s Office (August 2009) ICO Statement on the Interception Modernisation Programme available at: http:// www.ico.gov.uk/upload/documents/ pressreleases/2009/ico_statement_imp.pdf 20. Home Affairs Committee (June 2008) Fifth Report A Surveillance Society?, London: The Stationery Office 21. The Daily Telegraph (2009) ‘Dame Stella Rimington: Home Office hits back at ex-MI5 chief’s ‘police state’ warning’, 17 February 2009 22. Surveillance Studies Network for the Information Commissioner (2006) A Report on the Surveillance Society, Information Commissioner’s Office 23. Eminent Jurists Panel on Terrorism, Counter- terrorism (2009) Assessing Damage, Urging Action, International Commission of Jurists

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