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IPCO Annual Report 2017
6. Investigation of
Protected Information
Description of powers and use
6.1
Part III of RIPA enables public authorities (such as members of the law enforcement
and intelligence agencies, HMRC and the NCA) to serve notices on individuals or bodies
requiring the disclosure of protected (e.g. encrypted) information in an intelligible form or
to acquire the means by which protected electronic information may be accessed or put in
an intelligible form. This could include, for example, requiring a criminal suspect to provide
access to their device(s) by providing the password to their phone. The statutory intention
behind the measures in Part III is to ensure that the ability of public authorities to protect
the public and the effectiveness of their other statutory powers are not undermined by
the use of technology to protect electronic information. Failure to comply with a disclosure
requirement or a secrecy requirement is a criminal offence. The specific provisions are:
• power to require disclosure of protected information in an intelligible form (section 49);
• power to require disclosure of the means to access protected information (section 50(3));
• power to require disclosure of the means of putting protected information into an
intelligible form (section 50(3)); and
• power to attach a secrecy provision to any disclosure requirement (section 54).
6.2
Protected information has a variety of sources. This includes material obtained i) under a
judicial search warrant or a production order (for example, under the Police and Criminal
Evidence Act 1984); ii) as a result of a statutory power to seize, detain, inspect, search for
property or to interfere with documents or other property; iii) as a result of a statutory
power to intercept communications; and iv) as a result of the exercise of certain powers
under RIPA. It also includes material disclosed to a public authority voluntarily or which
has come into the authority’s possession by virtue of its statutory powers.
6.3
A disclosure notice can only be served by a person with an appropriate permission, if he or
she reasonably believes that it is necessary to do so on one or more of the following grounds:
i) in the interests of national security, ii) to prevent or to detect serious crime, iii) in the
interests of the economic well-being of the UK, or iv) because it is necessary for the purpose
of securing the effective exercise or proper performance by any public authority of any
statutory power or statutory duty. The imposition of the requirement must be proportionate
to the proposed outcome, and circumstances must mean that is not reasonably practicable
to access the information without giving the notice. Any conduct that is excessive as regards
the interference and the aim of the investigation or operation, or is in any way arbitrary, will
not be proportionate.
6.4
Written permission can be sought from a circuit judge or a district judge (Magistrates’ Court),
(England and Wales), a sheriff (Scotland) or a county court judge (Northern Ireland).
In addition, permission may arise from certain warrants issued by the Secretary of State or
authorisations in respect of property under Part III Police Act 1997, if the Secretary of State
or authorising officer has included permission to give a disclosure notice.