CHAPTER 12: CIVIL SOCIETY
sources), “special consideration” must be given to necessity and proportionality, and
a record must be kept.79 The Draft Interception Code is more detailed.80
12.67. Suggestions were posed in relation to both LPP and journalistic sources, including:
(a)
Adopting a similar scheme to that set out in PACE, such that police must have
an application to a circuit judge under Schedule 1 approved before they can
access personal records, journalistic material, and items subject to LPP.
Similarly, under the Police Act 1997, a Commissioner appointed pursuant to
s91 (rather than the ordinary authorising officer) must authorise property
interference where it is likely to result in the acquisition of knowledge of LPP
matters, confidential personal information or confidential journalistic
information. In the case of communications data which may lead to the
identification of journalistic sources, as set out above, this has already been
implemented.
(b)
A bar on targeting information of this nature (although not necessarily a bar on
use), or a bar on targeting without a warrant issued by an oversight body.
(c)
Mandatory reporting to an oversight body where confidential or journalistic
source material is identified, or indeed where there is a reasonable belief that
the intrusion may give rise to data of this nature, which then could be assessed
pursuant to a stringent proportionality test and the requirements of Articles 8
and 10 (set out in detail in Chapter 5).
Provide for robust sanctions
12.68. A few suggestions I received highlighted what is perceived to be minimal
accountability for what can appear to be very serious breaches of the law. Serious
intrusion into privacy has been undertaken (perhaps the “most visceral illustration” of
which, according to Liberty, is the alleged OPTIC NERVE program: see Annex 7 to
this Report). Yet in relation to much of the allegations in the Snowden leaks and the
findings of unlawfulness in the IPT, no public sanctions appear to have been imposed.
This is in part due to the minimal sanctions in the statutory regime:
79
80
(a)
According to RIPA s72(2), failure to comply with the Codes of Practice by any
person “shall not of itself render him liable to any criminal or civil proceedings”.
(b)
While s22 states that it is “lawful” to obtain and disclose communications data
if it is done under RIPA Part I Chapter 2, or to do that which is incidental to that
conduct (s22(3)), there is no clear sanction for a breach of the communications
data provisions.
(c)
This confusion is exacerbated by RIPA s80, which provides that conduct which
is not otherwise unlawful under RIPA or would not be unlawful apart from RIPA
is lawful.
Paras 3.73-3.75.
Draft Interception Code, paras 4.4-4.18.
233