CHAPTER 6: POWERS AND SAFEGUARDS
6.80.
RIPA is silent in relation to communications data that may attract privilege. The
Acquisition Code states that communications data are not subject to professional
privilege but also that it may be possible to “infer an issue of sensitivity from the fact
that someone has regular contact with, for example, a lawyer or journalist.”85 In such
circumstances, “special consideration” should be given to necessity and
proportionality.86 In cases where an application is made for communications data in
order to identify a journalist’s source, judicial authorisation must be obtained via the
procedures in PACE.87 In practice, it appears that the new Acquisition Code
recognises that communications data may attract professional privilege and require
special treatment on account of its confidential nature.
Data Sharing
Within the UK
6.81.
RIPA s15 requires that disclosure of intercepted material is restricted to the minimum
necessary for the authorised purposes set out in s15(4).
6.82.
Material obtained pursuant to a s8(4) warrant may only be read, looked at or listened
to by any person if it is certified for examination by the Secretary of State (see the
discussion of RIPA s16 at 6.54-6.59 above).
6.83.
The position in respect of communications data that have been acquired under RIPA
is more complex. As explained at 6.71 above, material obtained on national security
grounds may only be subject to certain aspects of DPA 1998. In any event, it should
not be retained for longer than necessary, having regard to the purposes for which it
was obtained. That principle will also apply to those with whom the data is shared.
6.84.
There is no restriction equivalent to RIPA s15 on the sharing of raw communications
data within government: but I was told that it is not a common practice.
Communications data, as well as interception product, will typically inform reports from
the security and intelligence agencies. This analysed intelligence is circulated to
Ministers, officials and others with the appropriate security clearance, who have a need
to receive the information. Circulation of intelligence product is tightly controlled by
the security and intelligence agencies, not just to meet the legal requirements of
minimising intrusion but also to ensure that their sources and methods are given the
least exposure.
Data from the UK
6.85.
85
86
87
I am informed by GCHQ that RIPA ss15(6) and (7) set out the restrictions on sharing
intercepted material with other states in circumstances where such exchange is
requested under a mechanism such as MLAT. In essence, the Secretary of State
must be satisfied that the receiving state will apply minimisation techniques “to such
extent (if any) as the Secretary of State thinks fit” (s15(7)(a)).
Acquisition Code, paras 3.72-3.
Ibid., para 3.74.
Ibid., para 3.78.
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