Report of the Interception of Communications Commissioner - July 2016
introduced a discretionary power for the Commissioner to investigate reportable errors
deemed to be of a “serious nature”. In such cases the Commissioner may investigate
the circumstances that led to the error and assess the impact of the interference on the
affected individual’s rights. The Commissioner may inform the affected individual, who
may make a complaint to the IPT. There is no definition of what circumstances might
constitute errors of a “serious nature.”
7.92 We have considered the implication of this discretionary power and its
interrelationship with the Commissioner’s mandatory power in Paragraph 8.3 of the Code
of Practice to inform any individual who has been adversely affected by a person within a
public authority wilfully or recklessly using RIPA powers to acquire communications data.
“Wilful and reckless failures” are also undefined in the Code of Practice as is the term
“adversely affected”.
7.93 The Commissioner has determined that a “wilful” failure may arise for the
purposes of Paragraph 8.3 of the Code of Practice when any person within a relevant
public authority intentionally and deliberately acts in manner inconsistent with their
powers or duties under RIPA and there has been an adverse impact on an individual.
They may act “recklessly” for the purposes of Paragraph 8.3 when exercising their powers,
if they failed take account of an obvious and serious risk and there was adverse impact
on an individual.
7.94 In an attempt to provide some clarity and guidance to public authorities on the
provisions in the Code of Practice, the circumstances in which we may classify an error as
“serious” include:
1
2
3
Technical errors relating to CSP secure disclosure systems which result in a
significant number of erroneous disclosures.
Errors where the public authority has, as a consequence of the data, initiated
a course of action that impacts on any individual (for example, the sharing
of information with another public authority stating a person is suspected
of a crime, an individual being visited or the execution of a search warrant at
premises or the arrest of a person).
Errors which result in the wrongful disclosure of a large volume of
communications data or a particularly sensitive data set.
7.95 We carry out in-depth and detailed investigations into any errors classified as
serious to determine fully the circumstances and impact. In some cases there may be no
adverse impact on any individual (e.g. a technical system error which led to false negative
results) and we would just investigate the cause of the error and ensure measures are put
in place to prevent recurrence. In cases where there was wilful or reckless conduct and an
individual had been adversely affected the Commissioner would invoke his power under
Paragraph 8.3 and inform the individual concerned. In cases where there was no wilful
or reckless conduct, the Commissioner would consider using his discretionary power in
Paragraph 6.22 i.e. if the error was deemed to be of a “serious nature” the Commissioner
would assess the impact of the interference on the affected individual’s rights and may
decide to inform the individual of the error.
www.iocco-uk.info
69