Report of the Interception of Communications Commissioner - July 2016
7.59 In relation to the 24 public authorities in categories 1, 2 and 3 above, all but one
has confirmed to us that they have implemented the necessary procedures to ensure
independence. We have inspected a number of those public authorities since and have
confirmed that their procedures are effective to ensure independence. We will continue
to scrutinise this area closely on future inspections. The Security Service is the only public
authority that has still not implemented measures to ensure DP independence.
7.60 DP Considerations (26 recommendations). We identified during inspections
that a number of DPs were recording short and / or formulaic written considerations
when approving applications. Good practice recommendations were given to those
public authorities to assist the DPs to improve the quality of their considerations and
provide sound evidence that they had considered each application individually.
7.61 SPoC efficiency and effectiveness (51 recommendations). A broad range of
recommendations were made in this area. Some were concerned with ensuring that
the SPoC provides a robust guardian and gatekeeper function e.g. by being sufficiently
resourced, by providing better quality advice to applicants or DPs about the proposed
collection strategy or conduct to be undertaken. Other recommendations were designed
to improve efficiency e.g. more dynamic management of any application clarifications,
amendments or refinements to improve the efficiency of the process.
7.62 Sensitive professions (27 recommendations). On 6 October 2014, following
national concerns relating to the protection of journalistic sources, we launched an
inquiry into the use by police forces of powers under Chapter 2 of Part 1 of RIPA to
identify or determine journalistic sources. Our inquiry report50 was published in February
2015 and recommended that such applications should be approved by a judge. The
Prime Minister committed to implement the recommendations as soon as possible and
the Serious Crime Act, which received Royal Assent on 3 March 2015, amended section
71 of RIPA to require the Code of Practice to include provision designed to protect the
public interest in the confidentiality of journalistic sources. On 25 March 2015 the revised
Code of Practice came into force requiring all UK law enforcement agencies to seek
judicial authorisation when applying for communications data to identify or determine
journalistic sources.
7.63 Regrettably we identified four investigations where data had been acquired to
identify or determine journalistic sources after the Code of Practice came into force on 25
March 2015 without seeking judicial approval. In some of these cases the conduct took
place on the day after the Code of Practice came into force or shortly thereafter. In all but
one of these cases the Commissioner determined that although the conduct was serious
it was not wilful or reckless and it did not adversely affect any individual significantly. The
one case in which the Commissioner gave a determination that the conduct was reckless,
in line with his power under Paragraph 8.3 of the Code of Practice, related to Police
(a)in relation to England and Wales, a justice of the peace,
(b)in relation to Scotland, a sheriff, and
(c)in relation to Northern Ireland, a district judge (magistrates’ courts) in Northern Ireland,
50 http://www.iocco-uk.info/docs/IOCCO%20Communications%20Data%20Journalist%20Inquiry%20
Report%204Feb15.pdf
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