2012 Annual Report of the Interception of Communications Commissioner
I am pleased that the Committee thought my view that the system is broadly working well, that
comparatively few errors are made, that only a few of these are serious, and that my inspectors
do a thorough job through which they can discover where the system is failing, and make
recommendations to put this right which are followed, was a fair summary.
9.4 Protection of Freedoms Act 2012 (Judicial Approvals for Local
Authority Communications Data Requests)
I have previously reported that I was unconvinced that the Government’s proposal to require all
local authorities to obtain judicial approval before they can acquire communications data would
lead to improved standards or have any impact other than to introduce unnecessary bureaucracy
into the process and increase the costs associated with acquiring the data. The Protection of
Freedoms Act 2012 came into force in this respect on 1st November 2012 and regrettably the
evidence that has been shared with my office to date reinforces my standpoint.
I can report that NAFN have seen a 63% reduction in the number of applications submitted by
local authorities in the first four months of the legislation being enacted. I do not believe that
local authorities have stopped requesting the data because they no longer need it, but I suspect
the reason they have stopped is due to the overly bureaucratic and costly process now in place.
Local authorities have reported experiencing lengthy time delays in just obtaining an appointment
with a magistrate (in the worst case 6 weeks). Other local authorities have reported that the
magistrates were totally unaware of the legislation and as a result they had to provide them
with advice and guidance. This is worrying, particularly considering the Home Office gave a
commitment to properly train the magistrates to carry out this role. In one case that has been
reported to my office, the magistrate did not ask to see the application form which set out the
necessity and proportionality justifications, or the DPs approval. The application was approved
on the basis of a verbal briefing from the applicant and DP. It is extremely concerning that
the paperwork in this case was not examined to check that it had been properly authorised.
Furthermore, in this case the local authority failed to serve the judicial application / order form
on the CSP with the associated Section 22(4) Notice, but the CSP disclosed the data without
question. There was no evidence that the acquisition of the data has been lawfully approved in
the absence of the judicial application / order form and therefore it is worrying that the CSP
disclosed the data in this case.
I was informed by the Home Office that Her Majesty’s Court Service (HMCS), which falls under
the remit of the Ministry of Justice, concluded that it would not be possible to manage the
judicial process electronically. This is regrettable and has meant that the judicial part of the
process has had to be dealt with manually outside of the fully electronic, auditable application
system that is in place at NAFN. This significantly increases the administrative burden. There
is also the possibility of more errors occurring as the communications addresses have to be
double keyed. Furthermore I have also been informed by the Home Office that HMCS did not
think that it would be possible for the judicial part of the process to be managed by the NAFN
SPoCs attending their local courts in the Tameside and Brighton areas, as it would place too
much burden on those courts. As a result each application gets bounced back and forth between
the applicant in the local authority, the SPoC at NAFN, the DP in the local authority and the
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