CHAPTER 14: EXPLANATIONS
an individual has even been identified. There may be contexts, therefore, in which
some kind of thematic approach will need to be considered.
14.82. Recommendation 66 would reverse the recently-imposed requirement on local
authorities to seek judicial approval by a magistrate or sheriff for communications
data requests. Whilst judicial approval at this level may sound like a safeguard, and
was no doubt required for that reason, the reality appears to have been that it has
added time, complexity and cost to the authorisation process without contributing
additional rigour to it: 9.98-9.100 above. Indeed it is very likely that the introduction
of this requirement has resulted in applications being made less often than they
should: 9.100.
14.83. I considered recommending extra training for magistrates, or centralising the judicial
mechanism in the court centres closest to NAFN’s Tameside and Brighton offices: 64
an option that has been rejected in the past. But despite the fact that the requirement
for authorisation by magistrate or sheriff was only recently introduced, I have no
hesitation in advising its removal. The independent SPoCs of NAFN perform a good
service (9.95 above) and – subject to careful audit by the Commissioners, and in
conjunction with local authority DPs – should provide the requisite protection against
the improper use of local authority powers to authorise the acquisition of
communications data.
14.84. The “ever-changing technical, jurisdictional and policy mish-mash” that characterises
the provision of communications data, particularly by overseas service providers (9.74
above), is notorious and makes it difficult for a SPoC to function effectively without a
regular flow of work to keep skills and knowledge up to date. My suggested remedy,
for which I encountered significant support, is to require all “minor users” of
communications data (9.2-9.3 above), not just as at present the local authorities, to
have the SPoC function performed for them centrally by NAFN: Recommendation 65.
14.85. Privileged or confidential material is dealt with in Recommendations 67-69:
(a)
The DP of any public authority which seeks communications data for the purpose
of determining matters that are privileged or confidential must either refuse the
request or refer it to ISIC for determination by a Judicial Commissioner.
(b)
When an application is not directed to such a purpose but relates to persons who
handle privileged or confidential information (including doctors, lawyers,
journalists, MPs or ministers of religion), special consideration and arrangements
should be in place, and the authorisation should be flagged for the attention of
ISIC.
14.86. The increased sensitivity of communications data, and the ever-changing
purposes for which it can be used, are acknowledged by Recommendations 70-71,
which require requesting public authorities to refer novel or contentious requests to
ISIC for a decision on authorisation. It is not intended that this should be a routine
occurrence. As acknowledged in Recommendation 71, it will be essential to create a
clear understanding of when it is appropriate. But in conjunction with ISIC’s power to
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Different solutions would have been needed for Scotland and Northern Ireland.
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