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POLICE FOUNDATION BRIEFING.Qxd 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 Gordon Brown 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 Sadiq Khan 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.
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