The Departments of Professional Standards and RIPA #TheRestIsSilence

A couple of weeks ago I wrote a blog about Police, Social Media and RIPA, and in that blog I wrote that I had sent off Freedom of Information Act requests to 4 Police Forces about their use of RIPA, if any, in relation to Police Officers and Social Media.

To remind you; I asked 4 Police Forces the following questions;

1) Can you please tell me for the year 2011, how many RIPA
applications were made by members of your Force in relation to
Police Officers’ use of Social Media or e-mail?

2) Can you please tell me for the year 2011 what were the relevant
offences or Discipline Regulations for these applications?

3) For the year 2011 what was the result of these applications? How
many officers were either prosecuted or disciplined?

4) For the year 2011, how many such applications (as above) were
refused and on what grounds?

The time has come the walrus said to name and shame those 4 Police Forces and unleash their replies on the world of Social Media.

The easiest one to deal with 1st is Dorsetshire Constabulary.  They should have provided me with a response by 12th December.  It is now the last day of the year and I haven’t heard a single word from them since their original acknowledgement of receiving my request.  Accordingly I have today written to Dorset Police requesting an Internal Review of their handling of my request.  Breath-Holding commence.

West Midlands came next, creeping in the day before the date my response was due (i.e. 19 out of 20 days had elapsed) with a REFUSAL to answer the questions.

Their full response and reasons given can be found here, but basically;

West Midlands Police will neither confirm nor deny the existence of any relevant data by virtue of the following exemptions

Section 23(5)

Section 44(2)

Section 30(3)

Section 31(3)

Section 40(5)

It also contains the following interesting paragraph;

Overall Harm

The Regulation of Investigatory Powers Act 2000 (RIPA) is often a complex piece of legislation to interpret.  The RIPA Act is a regulatory framework around a range of investigatory powers to ensure the powers are used lawfully and in a way that is compatible with the European Conviction on Human rights.  It also requires, in particular, those authorising the use of covert techniques to give proper consideration to whether their use is necessary and proportionate. A legislative scrutiny framework already
exists for RIPA activity: Police surveillance activity is subject to annual inspection by the Interception of Communications Commissioners Office (IOCCO) and Office of Surveillance Commissioners (OSC).  These inspections assess each constabulary’s compliance with the legislation and a full report is submitted to the Prime Minister  containing statistical information.

So, West Midlands Police don’t want to play.

On the same day I was excited to receive a response from Dyfed-Powys Police, also 19 out of 20 days elapsed.  Their full response can be read here,

This one had a personal letter attached, ooh I was so excited, I read it avidly;

The Dyfed Powys Police Service can neither confirm nor deny that it holds the information you requested as the duty in Section 1(1)(a) of the Freedom of Information Act 2000 does not apply, by virtue of the following exemptions:

 

Section 23(5) Information supplied by, or concerning, certain Security bodies

Section 30(3) Investigations and Proceedings conducted by Public Authorities

Section 31(3) Law Enforcement

Section 40(5) Personal Information

Section 44(2) Information covered by Prohibitions on Disclosure

Disappointed I read on;

Overall Harm for the Neither Confirm nor Deny (NCND)

The Regulation of Investigatory Powers Act 2000 (RIPA) is often a complex piece of legislation to interpret. The RIPA Act is a regulatory framework around a range of investigatory powers to ensure the powers are used lawfully and in a way that is compatible with the European Conviction on Human Rights. It also requires, in particular, those authorising the use of covert techniques to give proper consideration to whether their use is necessary and proportionate. A legislative scrutiny framework already
exists for RIPA activity: Police surveillance activity is subject to annual inspection by the Interception of Communications Commissioners Office (IOCCO) and Office of Surveillance Commissioners (OSC). These inspections assess each constabulary’s compliance with the legislation and a full report is submitted to the Prime Minister containing statistical information.

Is this just me being cynical or is this beginning to sound familiar?

So, Dyfed-Powys don’t want to play either.

Finally, I got a delayed response from the Met.  They had originally granted themselves a unilateral extension while their senior management considered their response (honestly).  When their response finally arrived it consisted of………you guessed it, a REFUSAL to answer.  Their full response and the reasons given can be found here.

I read through, thoroughly disappointed by now;

The Metropolitan Police Service can neither confirm nor deny that it holds the information you requested as the duty in Section 1(1)(a) of the Freedom of Information Act 2000 does not apply, by virtue of the following exemptions:

Section 23(5) : Information Supplied by or concerning Security Bodies
Section 44(2) : Prohibitions on Disclosure
Section 30(3) : Investigations and Proceedings Conducted by Public Authorities
Section 40(5) : Personal Information

I’m getting quite bored with this now;

Harm Test

The Regulation of Investigatory Powers Act 2000 (RIPA) is often a complex piece of legislation to interpret.  The Act is a regulatory framework around a range of investigatory powers which is used to ensure that these powers are used lawfully and in a way that is compatible with the European Convention on Human rights.  It also requires, in particular, that those authorising the use of covert techniques must give proper consideration to whether this use is necessary and proportionate. A legislative scrutiny framework already exists for RIPA activity: Police surveillance activity is subject to annual inspection by the Interception of Communications Commissioners Office (IOCCO) and Office of Surveillance Commissioners (OSC).  These inspections assess each constabulary’s compliance with the legislation and a full report is submitted to the Prime Minister containing statistical information.

By now I’ve had enough.  This is quite clearly a pro-forma response, presumably formulated by ACPO and circulated to all Forces designed to head off folk like me who try to get under their skin and see what’s going on.

To receive three refusals is bad enough, but what are the odds of getting three refusals that are worded virtually identically.  Some of their so-called ‘exemptions’ aren’t even relevant.  I deliberately chose 2011 as the year in question in order to avoid current, ongoing investigations, so NOT RELEVANT.

I have asked for no personal information, only number, so NOT RELEVANT.

To confirm or deny any of the police actions around RIPA would undermine ongoing investigations, reveal policing techniques, risk the identification of individuals and the possibility of revealing involvement of any exempt bodies.

So, I apologise to all you Police Officers out there but it seems that to answer my request might reveal policing techniques that you’re not already aware of.  NOT RELEVANT.  Risk the identification of individuals?  All I asked for was numbers!  NOT RELEVANT, neither is the possibility of revealing involvement of any exempt bodies.  Just a number was required. NOT RELEVANT.

For the benefit of all the officers serving in the 4 Forces named above I can only suggest that their outright refusal to confirm or deny anything does one thing.  It demonstrates an absolute absence of TRANSPARENCY.

I, for one, can neither confirm nor deny that I think this smacks of a cunningly crafted response by some ACPO/NPIA types who don’t yet know where SM is going to take them, don’t really understand it yet and have employed their Get Out of Jail Free card so that they don’t have to answer any awkward questions from the likes of me.

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A Merry Christmas from Theresa May

Just a quickie as they say, very busy now on the run-up to Christmas but I just thought that I should share with you my lovely letter from Theresa May regarding the proposed changes to Police Pensions.

Enjoy, and a Merry Christmas to my reader, even if you are in France

TM1

TM2

I am indebted to @Beazer916 for the photo

I am indebted to @Beazer916 for the photo

Dual Standards at the Met?

I wasn’t going to blog about this.  I promised myself.  Other bloggists have already covered it, and well.  Why bother then?

Because I’m absolutely flaming incandescent is why.

The calm of Sunday evening was rent asunder last night by news that a Met PC had been arrested for ‘leaking’ information in relation to that disastrous government PR exercise that came to be known as ‘Plebgate’.  Now, don’t get me wrong, I do not stand in the ‘PCs can do no wrong’ camp, but neither am I in a hurry to judge this officer on a dearth of facts.  Certain things, however, are already as clear as day.

Andrew ‘Let Me Out’ Mitchell MP came to public notoriety in September for his alleged foul-mouthed tirade at one or more of our finest, guarding the gates to Camoron Towers.  If my diary is slightly more accurate than the Home Office’s one, that was 3 months ago, or thereabouts.  As I understand the Police notes of this encounter were ‘seen’ by Sun journalists and a transcript of the alleged log was published in full by the Telepraph.

So, if my old head is up to it, the Met has had 3 months to conduct its witch-hunt into “Who leaked the log?”  Constable A (as we don’t yet know his name) was apparently not on duty at the time of the outburst.  His arrest on Saturday was apparently provoked by fresh information received into the unauthorised disclosure, or leaking, of the log.  The Sun state in today’s edition, that no payment for disclosure of this log, was asked for or given.  I am not saying that this automatically makes it ‘right’ and OK, but puts it in a slightly lower league than cops selling information for profit.

Fast Forward to Saturday and Constable A is arrested for Misconduct in Public Office.  I assume that the fact that he was arrested for this offence means that the Met are happy to accept that he did not materially benefit from this alleged unauthorised disclosure.  I don’t think that it’s in dispute that Constable A was held at a police station somewhere, questioned (obviously) and held overnight before being released on bail yesterday.

Not very many police officers get themselves arrested for leaking information, and the reasons for this are various.  However, many comparisons can still be made.

Our illustrious Police Minister Damian Green was famously arrested by the Met investigating a so-called leak a few years ago.  Once the hue and cry had died down the Met asked Sir Ian Johnston, ex head of British Transport Police and not a Sir then,  to conduct a review of their activities in relation to the arrest of Damian Green for Misconduct in Public Office (same offence, see).  Whilst the 2 cases are not exactly identical, they are similar in many ways.  Sir Ian Johnston’s review concluded that the arrest of Damian Green had not been proprtionate because “leaked material only amounted to “embarrassment matters” for the Government.”    He said the documents did not contain information which threatened to undermine national security or Government effectiveness.  Now that part is beginning to sound quite similar.

A separate review by Her Majesty’s Chief Inspector of Constabulary, Denis O’Connor, found that police should only investigate the most serious leaks.  Was the ‘plebgate’ leak a ‘serious’ leak?  Others will judge that but I suspect not, and it certainly had nothing to do with National Security.  So why was the officer arrested?  Why could he not have been met by officers from Professional Standards and interviewed when he was next scheduled to work?  I don’t know, but it sounds like a reasonable course of action to me.

Why was it necessary to detain the officer overnight?  Many journalists and public employees have been arrested in recent months over hacking, leaking, bunging and heaven only knows what.  Was it necessary for any of them to be detained overnight?  Is this case really so complex that the officer couldn’t have been bailed to come back the next day? He’s been bailed to return now, why not Saturday?

For the avoidance of doubt, I do not condone wrong-doing by anybody.  Neither do I condone Police Officers being treated in a manner that appears to be worse than would be applied to MPs, journalists and ‘ordinary’ folk.  Police Officers are ‘ordinary’ folk in a way.  They come from your community and will return there when their services are no longer required.  Is it really asking so much for them to be treated humanely and with respect?  Anybody else in the country from Burglar Bill to Lord Poshtwat would be screaming for their rights and to be dealt with properly.  For some reason, best known to themselves, the Met seem unable to apply that to their own.  It is almost as they are adopting a policy of making an example of these officers.  I have read words like Draconian and Orwellian on Twitter, and I can’t argue with them.  I do apologise unreservedly if your name happens to be Burglar Bill or Lord Poshtwat, a mere coincidence.

On a personal note I am alarmed by what I see as an increased use of Misconduct in Public Office, which seems to be the preferred sledgehammer of the moment.  I went through many years of my service never having even heard of the offence.  Now you see it every week or so somewhere.  Is it a coincidence that there is no power of arrest for disciplinary proceedings, but there is for that?

Finally, I was delighted to see John Tully, chairman of the Metropolitan Police Federation,  climb upon his charger this morning and question the arrest of this officer. he suggested that the officer’s representatives might “take forward” the suggestion that the arrest was disproportionate under guidelines in the Police and Criminal Evidence Act.

He said: “The thing which disappointed me is around the proportionality of whether it was necessary to arrest the individual. After all, he is a serving police officer.

“Clearly it needs to be resolved, because there are things that we shouldn’t talk about as police officers, and this may be one of those cases.”

He said he did not know what the arrested officer was said to have disclosed.

Mr Tully added: “There is no suggestion that there is any corruption involved.”

“It is a matter of policy and procedure as far as the Met are concerned. It will be interesting to see where this goes, whether there is a charge at the end of this.”

Methinks we haven’t heard the last of this.  Merry Christmas Constable A from the Metropolitan Police Professional Standards Directorate.

Social Media, The State and Interception #TheRestIsSilence

As a result of my last blog; Social Media, The Police and RIPA #TheRestIsSilence my reader asked me expand a little on the State and Interception.

So here it is, my attempt.  Make no mistake, I’m too long retired and divorced from policing to know what goes on now, but I think I know what SHOULD happen.  Special Branch, Anti8-Terroris Police, MI5, MI6, the Armed Forces, James Bond and Johnny English; they all have to stick to the same set of rules.  That set of rules is still RIPA, it applies to them just the same.  Without wishing to offend anyone (no, honestly) the Home Office have helpfully published an idiot’s guide to RIPA, outlining in plain English (yes, really) under what circumstances RIPA might be relevant and the sort of activities that it is designed to cover.

As you can see it covers subjects such as

  • terrorism
  • crime
  • public safety
  • emergency services

and is designed to regulate activities such as

  • intercepting communications, such as the content of telephone calls, emails or letters
  • acquiring communications data – the ‘who, when and where’ of communications, such as a telephone billing or subscriber details
  • conducting covert surveillance, either in private premises or vehicles (intrusive surveillance) or in public places (directed surveillance)
  • the use of covert human intelligence sources, such as informants or undercover officers
  • access to electronic data protected by encryption or passwords

As you might expect with anything to do with snooping and law enforcement activity, there are a number of Codes of Practice relating to the various varieties of snoopiness, they can be found here.  If activities take place in contravention of these Codes of Practice then the likelihood is that those acts are unlawful and and evidence so obtained could be challenged as inadmissible.  A slightly out of date, but easier to read version of who is regulated by RIPA is available here.

Having told you all of this, you will know how the various authorities SHOULD conduct their covert investigations, and I will no doubt be top of Johnny English’s shit list.

A well-known barrister, Mark Aldred, from a leading London Chambers has written a piece on RIPA and public service employers which states the case much better than I could, but is still easy reading at the same time, the full article can be found here, but the bottom line is;

“The real issue for a public authority is the avoidance of liability arising from infringing an employee’s Article 8 Right to Privacy. Public authorities are, at present, not as free as their private employer counterparts to engage in the surveillance of employees to check for disciplinary infringements. The European Convention on Human Rights governs the actions of public authorities. A public-authority employer is unlikely to be able to argue that it was acting in a private capacity in the field of employer and employee relations and thus the provisions of Article 8 should not apply. A public authority engaging in surveillance should ensure that its actions are convention compliant. In this context, the most likely breach will be of the Article 8 Right to Privacy. No breach will occur where either, there is no intrusion into the private sphere or there is an intrusion, but the intrusion is justified in accordance with 8(2) of the ECHR as being necessary and ‘in accordance with the law.’

This may or may not have an impact on a familiar case that is gradually becoming more High-Profile.  Professional Standards Departments, MI5, MI6 etc etc  need to understand RIPA and ECHR just as much as their criminal investigator counterparts, and ensure that all of their investigations are fully compliant, that way everybody knows where they stand and all is tickety boo.

Have a good weekend.

Social Media, the Police and RIPA – #TheRestIsSilence

This subject is currently a hot potato, a VERY hot potato.

There has been much conjecture, anecdotal evidence, fact and fiction spread around Twitter in recent months about Police use of Social Media and the real or potential repercussions of it.  Now we have one of own, Constable James Patrick of the Metropolitan Police Service who seems to have upset the Service management and has been served discipline papers for alleged Gross Misconduct.

Let me say now that I have absolutely no idea whether RIPA, or the Regulation of Investigatory Powers Act 2000, has played any part in this process, and the purpose of this blog is not to concentrate on individual, ongoing disciplinary proceedings.  My curiosity is roused by the bigger picture and whether the Police Forces of England and Wales are utilising powers vested by RIPA in conducting their disciplinary investigations against serving Police Officers in relation to their use of Social Media.

For the benefit of non-Police readers I will attempt to make some kind of sense out of RIPA for you.

In order to have a ‘good old fashioned look’ at what someone may be up to it may be necessary to undertake some form of Directed Surveillance.  This could comprise anything from taking sneaky photographs of them in a street, to following them around for days on end with a full-blown surveillance team.  It would also include interception of their telephones, email, internet etc (more on this later).

All of these things are routinely undertaken by specially trained police officers in the course of certain investigations, in order to obtain intelligence or evidence, but they have to be authorised.  Dependant upon the level of surveillance and where it is most things are authorised at Inspector or Superintendent level, but some activities require the express authority of the Home Secretary.

Subject to subsection (6), surveillance is directed for the purposes of this Part if it is covert but not intrusive and is undertaken—

  • for the purposes of a specific investigation or a specific operation;
  • in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation); and
  • otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under this Part to be sought for the carrying out of the surveillance.

Authorisation of directed surveillance.(1)Subject to the following provisions of this Part, the persons designated for the purposes of this section shall each have power to grant authorisations for the carrying out of directed surveillance.

A person shall not grant an authorisation for the carrying out of directed surveillance unless he believes—

  • that the authorisation is necessary on grounds falling within subsection (3); and
  • that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out.  (my italics)

An authorisation is necessary on grounds falling within this subsection if it is necessary—

  • in the interests of national security;
  • for the purpose of preventing or detecting crime or of preventing disorder;
  • in the interests of the economic well-being of the United Kingdom;
  • in the interests of public safety;
  • for the purpose of protecting public health;
  • for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or
  • for any purpose (not falling within paragraphs (a) to (f)) which is specified for the purposes of this subsection by an order made by the Secretary of State.

The conduct that is authorised by an authorisation for the carrying out of directed surveillance is any conduct that—

  • consists in the carrying out of directed surveillance of any such description as is specified in the authorisation; and
    is carried out in the circumstances described in the authorisation and for the purposes of the investigation or operation specified or described in the authorisation.

By now you’re probably thinking “what on earth has this got to do with Constable Goody tweeting things on his personal Twitter account that his bosses don’t like?” , and it may be reasonable to think that;

BUT

All Directed Surveillance has to comply with the rules and satisfy the Surveillance Commissioner, whose job it is to protect the wee folk from an overbearing Big Brother.

And the Surveillance Commissioner got a right Royal strop on earlier this year, positively unhappy with the way some Police Forces were conducting their business.

Way back in the middle of July the Grauniad published an article Surveillance watchdog warns of new threat to privacy

This article refers to the Annual Report of the Surveillance Commissioner, Sir Christopher Rose, whose job it is to oversee the antics of the Police Forces of England and Wales and protect the wee folk from an over-zealous Big Brother.

Its contents, which went largely unreported, are highly significant.
Rose notes that there has been a decline in covert “directed surveillance” of individuals by law enforcement agencies and public authorities.  It is his job to monitor such activities which are covered by the Regulation of Investigatory Powers Act 2000 (RIPA). But the police and other authorities are abandoning the practice of such covert “directed surveillance” of individuals, Rose suggests, because they can gather more and more personal information differently. They can do so through “overt” investigations simply by trawling through material readily available on the internet, through social media for example, and not be subjected to any RIPA controls.  (my italics)

How do you effectively monitor the activities of such data miners, especially those determined to evade statutory controls? Rose raises issues which should be addressed, not just tossed away in a report rushed out by Downing Street.  (my italics)

This raises serious questions. Rose says that his staff are concerned that research using the internet “may meet the criteria of directed surveillance“. In other words, trawling an individual’s social media available on the internet should be subjected to RIPA’s statutory controls. These state that the information should be gathered only to protect national security or prevent crime.  (my italics)

If I may quote a chunk of Sir Christopher’s report;

“My Commissioners have expressed concern that some research using the Internet may meet the criteria of directed surveillance. This is particularly true if a profile is built by processing data about a specific individual or group of individuals without their knowledge.
It is inappropriate to define surveillance solely by reference to the device used; the act of surveillance is the primary consideration and this is defined by RIPA (Regulation of Investigatory Powers Act 2000 section 48(2-4) (monitoring, observing listening and recording by or with the assistance of a surveillance device). The Internet is a surveillance device as defined by RIPA section 48(1). Surveillance is covert “if, and only if, it is conducted in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is, or may be taking place.” Knowing that something is capable of happening is not the same as an awareness that it is or may be taking place.”  (my underlining)

This got me to to wonder, so I asked 4 Police Forces the following questions;

1) Can you please tell me for the year 2011, how many RIPA
applications were made by members of your Force in relation to
Police Officers’ use of Social Media or e-mail?

2) Can you please tell me for the year 2011 what were the relevant
offences or Discipline Regulations for these applications?

3) For the year 2011 what was the result of these applications? How
many officers were either prosecuted or disciplined?

4) For the year 2011, how many such applications (as above) were
refused and on what grounds?

Four relatively focused questions, not one of which requires the disclosure of anyone’s private, personal information.  All is well then, let’s sit back and wait for the replies.

20 Working Days are normally allowed for a Public Authority to respond to a request under the Freedom of Information Act.

On Day 20 I received the following response from 2 of the 4 Police Forces;

The xxxxxxxxxxxx Police Service can neither confirm nor deny that it holds the information you requested as the duty in Section 1(1)(a) of the Freedom of Information Act 2000 does not apply, by virtue of the following exemptions:

Section 23(5) Information supplied by, or concerning, certain Security bodies

Section 30(3) Investigations and Proceedings conducted by Public Authorities

Section 31(3) Law Enforcement

Section 40(5) Personal Information

Section 44(2) Information covered by Prohibitions on Disclosure

Sections 44(2), 23(5) and 40(5) are absolute exemptions, which means that the legislators have identified that harm would be caused by release and there is no requirement to consider the public interest test, (except for Section 40(5)).

Sections 30(3) and 31(3) are qualified exemptions and require us to carry out a public interest balancing test before they can be relied upon.

Overall Harm for the Neither Confirm nor Deny (NCND)

The Regulation of Investigatory Powers Act 2000 (RIPA) is often a complex piece of legislation to interpret. The RIPA Act is a regulatory framework around a range of investigatory powers to ensure the powers are used lawfully and in a way that is compatible with the European Conviction on Human Rights. It also requires, in particular, those authorising the use of covert techniques to give proper consideration to whether their use is necessary and proportionate. A legislative scrutiny framework already exists for RIPA activity: Police surveillance activity is subject to annual inspection by the Interception of Communications Commissioners Office (IOCCO) and Office of Surveillance Commissioners (OSC). These inspections assess each constabulary’s compliance with the legislation and
a full report is submitted to the Prime Minister containing statistical information.

In order to counter criminal activity it is vital that the police and other agencies have the ability to work together, where necessary covertly, in order to obtain intelligence within current legislative
frameworks to ensure the successful arrest and prosecution of those who commit criminal acts.

The prevention and detection of crime is the foundation upon which policing is built and the police have a clear responsibility to prevent crime and arrest those responsible for committing crime. To do this the police require evidence and that evidence can come from a number of sources, some of which is obtained through covert means.

To confirm or deny any of the police actions around RIPA would undermine on-going investigations, reveal policing techniques, risk the identification of individuals and the possibility of revealing involvement of any exempt bodies.

Revealing information that specific tactics are used in certain circumstances would help subjects avoid detection, and inhibit the prevention and detection of crime. This could either lead to the
identification of specific cases or in providing this level of information at force level is likely to result in significantly small authorisation numbers being published and presents a real risk of identifying the
resources available to individual departments to covertly monitor individuals likely to be committing offences under their remit. Disclosure would undermine the partnership approach to law enforcement but also, due to the legal constraints under Chapter 1 of Part 1 of the RIPA legislation, it may actually be a criminal offence to do so (Section 19).

To confirm or deny how many RIPA applications have been made relating to police officer’s use of social media or email would compromise on-going investigations or identify individuals. If a force applied an exemption to the information this would reveal that these policing techniques and investigative activity had taken place. Conversely, by stating ‘no information held’ would highlight to an officer that his conduct is not being investigated and that he is free to continue.

It is important the Police Service discloses information regarding surveillance activity under RIPA where it is appropriate to do so, but an officer’s conduct may be investigated covertly by the force Professional Standards Department (PSD) without the member of staff knowing of its existence. By confirming or denying that RIPA applications have been made would alert an officer that may or may not be involved in the misuse of social media or email, not only that PSD have the ability to ask for RIPA applications in these circumstances, but that they are aware of his misconduct. The officer would then cease his activity and perhaps make attempts to hide or delete the evidence.

Information compiled for the purposes of an investigation, be it a criminal investigation or internal misconduct hearing, may contain information obtained from individuals to assist with an investigation,
which would be in confidence. To disclose investigative information could dissuade people from providing information to the police in future. The public, be they general members of the public or internal police officers or staff, must have confidence that their information is treated sensitively and appropriately. Confirming or denying the information is held could lead to ‘trial by media’ as it is likely to identify any officers that may or may not be involved.

Public Interest Test

Factors favouring confirmation or denial for Section 30

By confirming or denying that any information relevant to the request exists would enable the public to obtain satisfaction that all investigations are conducted appropriately and that their public money is
well spent. Confirming or denying that RIPA is applied to police that misuse social media would increase public scrutiny of police actions and in turn hold the police service to account.

Factors against confirmation or denial for Section 30

By confirming or denying that RIPA applications have been made in instances of police use of social media or email would hinder the prevention or detection of crime and undermine the partnership approach to law enforcement.

Factors favouring confirmation or denial for Section 31

By confirming or denying that RIPA applications have been made in respect of police officers use of social media would enable the public to see where public funds are being spent. Better public awareness may reduce crime or lead to more information from the public.

Factors against confirmation or denial for Section 31

By confirming or denying that any information relevant to the request exists, law enforcement tactics could be compromised which could hinder the prevention and detection of crime and more crime could be committed.

Section 40(5) Personal Information

The duty to neither confirm or deny under this section of the Act arises where the disclosure of the information into the public domain would contravene any of the data protection principles or Section 10 of the Data Protection Act 1998 or would do so if the exemptions in Section 33A(1) of that Act were disregarded.

Disclosure under Freedom of Information is a release of information to the world in general and not an individual applicant. Therefore, simply confirming or not that such information were held would disclose personal information about individuals.

As such any disclosure that identifies an individual or identifies that an individual has had contact with Dyfed Powys Police or not is exempt and would be a clear breach of principle 1 of the Data Protection Act.
Personal data is defined under Section 1(1)(e) of the Data Protection Act
(1998) as:

“… Data which relate to a living individual who can be identified-

(a)   from those data, or

(b)   from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual.”

In this case, the confirmation or denial of the existence of information (if any) would breach Principle One of the Data Protection Act (details of which are provided below).

Principle One:

“Personal data shall be processed fairly and lawfully and in particular shall not be processed unless

(a)   at least one of the conditions in Schedule 2 is met, and

(b)   in the case of sensitive personal data at least one of the conditions in Schedule  3 is also met.”

Balance Test

The Police Service will not divulge whether information is or is not held if to do so would undermine on-going investigations or compromise law enforcement. Whilst there is a public interest in the transparency of policing operations and in this case providing assurance that the police service is appropriately and effectively managing the conduct of police officers, there is a very strong public interest in safeguarding the integrity of police investigations and operations.

There is also no requirement to satisfy any public concern over the legality of police operations and the tactics we may or may not use. The force is already held to account by independent bodies such as The Office of the Surveillance Commissioner and The Interception of Communications Commissioners Office. These inspections assess each constabulary’s compliance with the legislation and a full report is submitted to the Prime Minister containing statistical information. Our accountability is therefore not enhanced by confirming or denying that any other information is held.

As much as there is public interest in knowing that policing activity is appropriate and balanced in matters of police officer conduct, this will only be overridden in exceptional circumstances. The points above highlight the merits of neither confirming nor denying the requested data exists. It is appreciated that members of the public will naturally be interested in techniques employed for surveillance. Likewise, we also understand some people believe surveillance (in any form) is used too widely, and therefore an unnecessary intrusion into their privacy. However, taking into account the fact that the Police Service are already scrutinised as detailed above and effective operational law enforcement would be compromised by any disclosure, it is our opinion that for these issues the balance test for confirmation or denial is not made out.

None of the above can be viewed as an inference that any information does or does not exist.

To confirm or deny any of the police actions around RIPA would undermine on-going investigations, reveal policing techniques, risk the identification of individuals and the possibility of revealing involvement of any exempt bodies.  Really?  I don’t remember asking for anything that wasn’t a number.  If supplying me with a number will compromise ongoing Police investigations then I’m very sorry that I asked.

By confirming or denying that RIPA applications have been made in instances of police use of social media or email would hinder the prevention or detection of crime and undermine the partnership approach to law enforcement.  Really?  I’m speechless at that one.

By confirming or denying that any information relevant to the request exists, law enforcement tactics could be compromised which could hinder the prevention and detection of crime and more crime could be committed.  Oh they just get better and better.

Revealing information that specific tactics are used in certain circumstances would help subjects avoid detection, and inhibit the prevention and detection of crime. This could either lead to the identification of specific cases or in providing this level of information at force level is likely to result in significantly small authorisation numbers being published and presents a real risk of identifying the resources available to individual departments to covertly monitor individuals likely to be committing offences under their remit.  I’m pretty sure that they do employ such tactics or they wouldn’t be so keen to neither confirm nor deny that they do.

Moving on,

A large metropolitan Police Force has granted itself a 10 day extension of the 20 day time limit whilst its Senior Management consider its response.

The 4th, a small (ish) rural Force has yet to make any kind of response.

I will, of course, update you when these responses are forthcoming.

I apologise whole-heartedly for the length of this blog, but I hope that you can understand why it is so long, plus it is an important and current topic.  However, the big question remains unanswered, is it lawful and/or proportionate to trawl through an officer’s personal Twitter/Facebook account, taking note of the posts and information gleaned within?  Or is it unlawful (as authority would never be granted) and completely disproportionate?

I remember my kids watching Trevor and Simon on Saturday morning TV and hearing the immortal line “We don’t do duvets”.  Well the Police Service are not supposed to do “Fishing Expeditions”  Focused and Targeted, not a Trawl.

Social Media: The PC James Patrick case #PFTP

You’ve had RetiredandAngry, now read Grumpy’s view on the James Patrick case #PFTP

Dave's Bankside Babble

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Recent events have shown it’s obvious that our police forces, along with their senior management teams (and some other public sector organisations), aren’t as comfortable with their staff use of social media as they actually purport to be…

On the one hand they actively promote public engagement via these modern mediums of communication yet on the other, especially when something is said that senior managers aren’t comfortable with, the full weight of their ‘professional standards departments’ immediately swing into action and come crashing down on ‘miscreant’ staff.

But much of this heavy handed-handed action often results from; (1) a lack of clearly defined policy on the ‘correct’ use of social media and (2) a distinct lack of training and/or information before users are let loose with these powerful forms of communication.

In the early days of public sector blogging, particularly within the police service, many social media users tended to publish anonymously. Most of that anonymity was born…

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A [Collective Noun] of Deputies

Good afternoon dear readers,

There has been some mucho amusing banter on Twitter in the last day or so about a suitable collective noun for the Deputy Police and Crime Commissioners.  Some worthy suggestions have been put forward, but I thought it would be a bit of fun to conduct a poll, give everybody the chance to contribute and then publish the results in a week or so, and maybe even pas the results on to the press or the PCCs Professional body (I’m sure they’ll have one somewhere) for their perusal and so they can maybe choose one.

So I’ve started the poll off with the ones that I’ve seen so far, feel free to add your own at the bottom, You can vote for as many as you want, so have some fun