Report of the Interception of Communications Commissioner - July 2016
Scotland and has been widely publicised.51 In this instance the Commissioner informed
four individuals about the conduct and provided them with sufficient information
to engage the IPT. All have subsequently made valid complaints and Police Scotland
have conceded to the IPT that the communications data authorisations were obtained
unlawfully. A hearing is scheduled in July 2016 to decide outstanding points of law and
to consider a remedy.
7.64 In our July 2015 report we commented on the speed at which the Code of Practice
provisions concerning journalistic sources came into force, the lack of stakeholder
engagement around the change and the fact that many public authorities were not even
aware that the Code of Practice had come into force until some time afterwards. There
is also a lack of clarity concerning the provisions in the Code of Practice which should be
addressed by the Home Office, for example:
•
•
why is the judicial provision limited to law enforcement agencies?
what authorisation route do public authorities who do not have powers under
PACE use for such applications?
•
the interchange of the words “identify” and “determine” in Paragraphs 3.78 to
3.84 of the Code of Practice has caused misunderstanding.
•
when acquiring data on a journalist’s phone because, for example, they are
the victim of an offence or because it is necessary and proportionate to
identify or determine their source, the consequence of acquiring that data is
arguably the same even though in the former case that consequence might
be unintended (i.e. there is a likelihood that confidential journalistic sources
may be identified). In the latter case judicial approval is required, but in
the former it is not. The infringement of Article 10 ECHR rights is the same
irrespective of the intention of the applicant if the data acquired can be used
to determine a journalistic source. A lack of unity in the language of the Code
of Practice creates opportunities for different interpretations. This could lead
to circumstances where two applications facing exactly the same investigative
issues adopt different approaches.
7.65 The Code of Practice (Paragraphs 3.72 to 3.77) also requires applicants and DPs
to give special consideration to and take particular care when considering applications
for communications data which relate to persons who are members of professions which
handle privileged or otherwise confidential information (e.g. medical doctors, lawyers
etc) are undertaken.
7.66 In 2015 the inspectors identified instances in 13 public authorities where
applications of this nature contained insufficient consideration of the degree of
interference with an individual’s rights and freedoms. In these cases we sought further
information from the applicant, investigator and / or DP and were satisfied that although
the application failed to articulate properly these considerations, they had in fact been
51 http://www.iocco-uk.info/docs/Memorandum%20of%20Commissioner’s%20Determination%20
(Redacted).pdf
www.iocco-uk.info
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