CHAPTER 6: POWERS AND SAFEGUARDS
6.75.
Related communications data obtained pursuant to an interception warrant are treated
in the same way as intercepted material. The s15 principles, set out above, apply to
that material.
6.76.
But RIPA s16 only applies to intercepted material and not to related communications
data, which may be selected and reviewed according to a factor which is referable to
an individual who is known for the time being to be in the British Islands.
Safeguards for confidential material
6.77.
RIPA itself offers no guidance concerning the treatment and handling of confidential
communications, such as those covered by LPP. The Interception Code offers some
guidance on those questions. It states that, where it is likely that privileged
communications will be intercepted, that should be stated on the face of the warrant
application and weighed by the Secretary of State when determining whether or not to
grant it. The Interception Code also states that caseworkers should be “alert to any
intercept[ed] material which may be subject to legal privilege.”78 It does not state what
steps should be taken if legally privileged material is identified. Similar guidance is
given concerning the treatment of confidential personal information and journalistic
material.79
6.78.
The IPT declared in February 2015 that the UK Government’s regime for the
interception, analysis, use, disclosure and destruction of legally privileged
communications contravened ECHR Article 8 between 2010 and early 2015.80 That
declaration was made following an admission by the Government to that effect. The
new Acquisition Code and Draft Interception Code were published shortly afterwards.
6.79.
The new Draft Interception Code expands on the protections afforded to confidential
communications in the Interception Code. Where the interception is intended to
intercept legally privileged communications, the Secretary of State must be satisfied
that there are “exceptional and compelling circumstances that make the warrant
necessary.”81 Where such communications will be intercepted, although that is not
the intention, the application for a warrant should identify the steps which will be taken
to mitigate the risk of obtaining legally privileged information.82 Officials who examine
intercepted communications should seek advice where there is any doubt concerning
the privileged nature of the communication and any legally privileged material that is
retained or disseminated must be accompanied by a clear warning that it is subject to
legal privilege.83 The Draft Interception Code sets out similar provisions in respect of
journalistic or other confidential material but the threshold for access is not as high as
that in respect of legal privilege.84
78
79
80
81
82
83
84
Interception Code, paras 3.2-3.8
Ibid,. paras 3.9-3.11.
In the Belhadj IPT Case, the order in relation to which can be found at: https://www.judiciary.gov.uk/wpcontent/uploads/2015/02/belhadj-order-open-.pdf.
Draft Interception Code para 4.8.
Ibid., para 4.7
Ibid., paras 4.12-4.14
Ibid., paras 4.19-4.25.
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