CHAPTER 12: CIVIL SOCIETY
for restrictions on police access to phone records.74 This led IOCCO to consider this
area in late 2014-2015, and to recommend judicial authorisation for the police
accessing communications data for the purposes of “determining” a source, but
finding that otherwise ordinary procedures can be used (with bolstered guidance in
the Code of Practice).75 As emphasised by Jan Clements to me, any consideration of
this issue requires care and safeguards not only in relation to the identification of a
source, but also in relation to the fact that a source has been in touch, and in relation
to the location, timing and frequency of communications.
12.64. Some of these criticisms may have been addressed by the (very) recent changes to
the framework for such data. The Serious Crime Act 2015 s83 inserted into RIPA s71
a requirement for a code of practice which “shall include provision designed to protect
the public interest in the confidentiality of journalistic sources”. The Draft Interception
Code requires “particular consideration” to be given to such material.76 The new
Acquisition Code notes that interference with privacy may be higher in such situations,
requires a record to be kept, requires “particular care” over applications for such data,
and requires law enforcement to use PACE provisions to seek a production order
when they wish to identify a journalist’s source.77
12.65. The importance of LPP was highlighted by the Bar Council, which noted that it forms
the cornerstone of a society governed by the rule of law”. Some submissions focused
almost exclusively on this issue (including those of the Bar Council and the Faculty of
Advocates). These submissions have been partially validated by the admission by
the government in the Belhadj IPT Case that its procedures for dealing with LPP
material were in violation of the standards required by Article 8.78 The question then
becomes what is in fact lawful. One particular issue concerns whether or not
communications data may attract privilege. While this was not the focus of the
submissions I received, the new Acquisition Code makes clear the Government’s view
that it cannot, at para 3.72. As explained at paras 5.45-5.46 above, the contrary is
certainly arguable where the communications data discloses not just the existence of
the lawyer-client relationship but also the substance of the advice sought and given
(for example the identity of an expert witness who has been cc’d into an email). In
the context of interception, and in particular in cases against the Government it is
emphasised that there must be robust barriers between those collecting data and
those involved with the cases in question. It is broadly accepted that extra safeguards
would not apply to cases in which LPP is used to further a criminal purpose.
12.66. Again, as with journalistic sources, there have been recent amendments to the Code
of Practice which entail further safeguards. In the new Acquisition Code, while there
is no specific requirement for applications (as there is in relation to journalistic
74
75
76
77
78
Polling was conduct by Ipsos MORI for the Evening Standard in October 2014. See “Public backs curbs
on police seeing phone records of journalists”, London Evening Standard, 21 October 2014.
IOCCO inquiry into the use of RIPA Part I Chapter 2 to identify journalistic sources, (February 2015),
para 8.9.
Draft Interception Code, para 4.19.
Paras 3.73-3.84.
See the Order of the Court handed down on 26 February 2015
232