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  A slightly out of date, but easier to read version of who is regulated by RIPA is available here.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.

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7 thoughts on “Social Media, The State and Interception #TheRestIsSilence

  1. So it would appear that the MPS and other forces may be in breach of RIPA and the Human Rights act. If they did not like what James was saying why did they not speak to him way back when he first started blogging – his posts quickly came to the attention of people in a position to complain and so I’m sure the Met were aware of him. By not speaking to him they have acquiesced and now are complaining because he is offering the posts in a book the sales of which are going to charity. Far from bringing the service into disrepute he has in fact enhanced its reputation only for the Met to bring itself into disrepute by its over the top heavy handed approach.

  2. I think I must agree with you Steve, if the Met perceived that there was a problem, regardless of how valid that view was, they had ample opportunity to speak to James formally/informally and nip it in the bud. In the absence of such a steer I feel it was quite appropriate for him to continue, but I guess events have overtaken us and now we await the outcome of what most see as completely unfair disciplinary proceedings. As an outsider it seems that James’ Human Rights have been trampled underfoot, but there are always two sides etc…..

    • I forget to mention Steve, that I also think that James did not bring the Met into disrepute, we both know that most of his frustrations were with ACPO and the Government. He actually comes across as a fiercely loyal Constable. That one will be interesting to watch too

  3. Paul Peachey on Wednesday 05 Dec ’12 stated that:
    “..the Metropolitan Police said that Mr Patrick .. was under investigation because he failed to declare a business interest and ask permission from his superiors to publish the book.”
    (book: “The Rest is Silence” by: James Patrick).

    In other words, this was the reason he was under investigation, the reason he is facing a gross misconduct inquiry and the reason he’s been ordered not to communicate with the public?

    Yet in The Times, Fiona Hamilton on Thu 06 Dec wrote (para 8):
    “Ms Todner said that Mr Patrick .. had declared his book as a business
    interest and received permission for its publication.”
    (http://www.thetimes.co.uk/tto/news/uk/crime/article3622085.ece)

    Both can’t be true. If The Times was correct, the original reason for silencing him has collapsed and a public apology is due to him and his family.

    Who lied – a well respected firm of solicitors or the Met management?

    If the Met, why did they initially try to tarnish the reputation of one of their own most energetic, loyal and enthusiastic police officers?

    Why was this slur never repeated in other papers after the 5th – was the Met put right pretty darn smartish?

    Yet they thought they’d get away with the lie – long enough at least to smear the good name of this honest & diligent employee?

    Aren’t there laws about this – is this how the Met demonstrates its duty of care as an employer? New recruits, please take note before signing up.

    • There are a few aspects of this case that make me uncomfortable, I await the outcome with interest. Personally I think that James has done nothing to diminish public confidence in the Police and am happy to go on record as saying that I think the reverse is true

  4. Pingback: The Departments of Professional Standards and RIPA – #TheRestIsUnbelievablySilent « RetiredAndAngry

  5. Pingback: RIPA and how the Police Service makes sure it’s silent | RetiredAndAngry

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