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 A slightly out of date, but easier to read version of who is regulated by RIPA is available here.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