CHAPTER 14: EXPLANATIONS
In addition, the IPT has now moved its administrative base away from the Home Office
to a location close to the Royal Courts of Justice: a welcome and necessary
development.
14.103. My first two recommendations concern access to the IPT on the part of persons
whose communications were wrongly intruded upon. I recommend, in accordance
with suggestions submitted to me by IOCCO, that:
(a)
the jurisdiction of the IPT should be expanded (or clarified) to cover
circumstances where it is a CSP rather than a public authority which was at
fault, for example, by intercepting the wrong communications address and/or
disclosing the wrong communications data74 (Recommendation 113); and that
(b)
ISIC should be allowed to inform a subject of an error (subject to not prejudicing
ongoing operations),75 at least in cases where it considers it possible that the
scale or nature of the error might entitle the subject of the error to compensation
(Recommendation 99). A similar power might in principle be given to CSPs,
but CSPs to which I spoke were more comfortable with a system whereby they
would report errors to the Commissioners (as currently), who would take the
necessary decision.
14.104. The second of those recommendations, though a departure from the current position,
would still fall short of the general duty to notify (at least of interception) that exists in
many countries and has been strongly encouraged (though not described as
essential) by the European Court of Human Rights76 and by a UN Special
Rapporteur.77 For as long as the relevant Commissioner’s office does not inspect
every intrusion, it will to some extent be arbitrary (or a matter of chance) whether an
error is referred to the IPT or not. But improved procedures at IOCCO have made it
more likely that serious errors will be uncovered by the sampling process. On any
view, the existing threshold (wilful or reckless failure by a public body),78 and its
limitation to cases involving communications data or encryption keys, seem hard to
understand.
14.105. My third recommendation is that there should be a right of appeal to an appropriate
court79 from rulings of the IPT, on points of law only (Recommendation 114). The IPT
is unusual in being subject to no process of appeal, an incongruous state of affairs
given that it is the only appropriate tribunal for certain categories of human rights
appeals (RIPA s65(2)(3)), and that it can decide issues of great general importance
involving vital issues of principle. The Court of Appeal is now accustomed to hearing
74
75
76
77
78
79
This was suggested by IOCCO’s submission to the Review of December 2014, 3.1.4. IOCCO
reported that in 2013, 20% of the interception errors and 12.5% of the communications data errors
were caused by CSPs. A well-publicised example is the mistaken disclosure in March 2014 of more
than 1000 numbers relating to News UK employees, inadvertently sent by Vodafone to the
Metropolitan Police in the context of Operation Elveden.
There is no bar to this where communications data is concerned. It however currently falls foul of
RIPA s19 where interception is concerned.
Klass v Germany (Application 5029/71, judgment of 6 September 1978) para 69; AEIHR v Bulgaria
(2007) para 57; Lüütsepp v Estonia (Application 46069/13, pending).
UN Special Rapporteur on Free Expression A/HRC/23/40, 17 April 2013, para 82.
Communications Data Code of Practice, 8.3.
Appeal could lie to the Court of Appeal of England and Wales, the Inner House of the Court of Session
or the Court of Appeal of Northern Ireland, as is the position for the Competition Appeal Tribunal.
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