CHAPTER 9: LAW ENFORCEMENT
always up to date, would benefit from having their requests routed through NAFN in
the same way as the local authorities do.
DPs
9.96.
I received representations from the LGA regarding the status of the DP.63 There were
difficulties in determining who was entitled to act as a DP, particularly in view of what
was seen as contradictory guidance from IOCCO and the OSC, and in the context of
increasingly flat management structures. The LGA suggested to me that, rather than
specifying the level of role required to be a DP, the requirement should be designed
in terms of competency or function, with councils given the freedom to delegate the
role appropriately. This is because they do not all have the numbers of staff at senior
levels with ability to maintain the knowledge that is needed sufficiently to scrutinise
what are only occasional applications.
9.97.
Alternatively, the LGA said there may be scope to externalise or join up the DP role
across councils, by appointing regional DPs, which would bring benefits in terms of
training and consistency. I did not detect amongst law-enforcement personnel to
whom I spoke any principled objection to authorisation for communications data
access coming from outside their investigating bodies. Their main concern was that
authorisation should be timely and the process as unbureaucratic as possible.
Court approval
9.98.
Much less appreciated is the requirement, which is imposed only on local authorities,
to have requests for communications data judicially approved by a magistrate or (in
Scotland) a sheriff.64 The LGA has not asked for its removal, though it admits to
concerns about its efficiency.
9.99.
Otherwise, with the exception of the Magistrates’ Association, which considered that
judicial approval “ensures greater consistency of decision-making” and “provides
greater confidence in the legitimacy and fairness of the process”,65 few people thought
that the system added value. In particular:
(a)
63
64
65
It is described, with some reason, as extremely cumbersome: Files must go:
from the requesting local authority to NAFN;
from NAFN back to the local authority for DP approval;
then from the local authority back to NAFN for the preparation of a court
pack;
from NAFN back to local authority for them to obtain court approval;
Evidence to the Review dated 9 March 2015.
See 7.56-7.61.
Submission of 12 March 2015 to the Review.
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