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INTERCEPTION OF COMMUNICATIONS - Coggle Diagram
INTERCEPTION OF COMMUNICATIONS
BEFORE 1985
Conditions for tapping phones and intercepting mail were laid down, but had no legal force
If the interception was related to national security, it could only be authorised in respect of major subversion, terrorism or espionage
Article 8- right to privacy
INTERCEPTION OF COMMUNICATIONS ACT (ICA) 1985
This made the use of phone and mail intercepts subject to certain controls
It was introduced as a direct result of a ruling in the ECtHR in Malone v UK- the existing warrant procedure violated the Article 8 guarantee to privacy
Malone v UK-evidence was obtained through phone tapping that he was handling stolen goods
Bugging Devices
Khan (Sultan)- A bug was placed outside a house suspected to be involved in importing drugs
POLICE ACT 1997
Warrant
S93(5)- A warrant may be issued by the Chief Constable of the police, or, if this isn't practical any officer of the rank of Assistant Chief Constable or above
S95(1)- The authorisation will be given in writing, except in the case of emergency, where it may be given orally
Authorisation
S91(1)- Independent commissioners are appointed under this section
S96- One has to be notified of the authorisation as soon as they are made, but the police can still act on the authorisation
Prior Authorisation (S97)
In certain circumstances, prior authorisation is required
Where a property is believed to be a dwelling
REGULATION OF INVESTIGATORY POWERS ACT (RIPA) 2000
This repeals the ICA 1985 and all forms of surveillance are brought under it
SECTION 1
Makes it an offence to intentionally and without lawful authority intercept communications by a phone or mail
This offence extends to voicemail messages (R v Edmondson)
The Specified Purpose Set Out In S5(3) are:
The interests of national security
Preventing or detecting serious crime (defined in S81(3)
Safeguarding the economic well-being of the UK
Giving effect to an international mutual assistance agreement in circumstances equivalent to serious crimes
SECTION 8
Deals with the contents of the warrant, which must specify the target and contain information about addresses
SECTION 9
Deals with the duration of the warrant. The initial period is 3 months from issued, but it may be renewed an unlimited number of times, provided the Home Secretary continues to believe it's necessary
INDEPENDENT INTERCEPTION OF COMMUNICATIONS COMMISSIONER
They supervise the warrant system
The Commissioner is obliged to report annually to the Prime Minister
The powers of the Commissioner are supervisory and don't extend to taking action in relation to particular warrants
SECTION 67
Makes it clear that the tribunal is to operate on the principles of 'judicial review'
If the tribunal finds there has been impropriety, it has the power to quash a warrant, order the destruction of any information and award compensation
There is no further appeal from the tribunal
In 2010, the tribunal received 164 complaints and upheld 6 of them
They only route of complaint for those dissatisfied with the system is to a tribunal established under S67
EVALUATION OF RIPA
(+) Statutory Framework
The procedure improves the previous situation in that RIPA provides a statutory framework for the operation of powers which will involve infringements upon a person's privacy
(-) Tribunal
The control of the exercise of surveillance power by the tribunal is vague.
(-) Surveillance Commissioners
For directed surveillance sources, there is no involvement of the Surveillance Commissioner so there is a lack of independent supervision
(-) Citizens aware their rights are being infringed upon?
There are also problems as to whether individuals will be aware that their rights have been infringed
INVESTIGATORY POWERS ACT 2016 (IPA)
It brings together and updates existing powers (RIPA 2000 will continue until expressly repealed) The IPA introduced:
Double Lock
Warrants issued by the Home Secretary will also require the approval of a judge
Improve Collation of Intelligence
New powers and restated existing ones for the UK intelligence agencies and law enforcement to carry out targeted interception of communications, bulk collection of communications data, and bulk interception of communications
INVESTIGATORY POWERS COMMISSION
To oversee how the powers are used
Protections: New protections for journalistic legally provided material
Safeguarding journalists' sources: Requirement for judicial authorisation for acquisition of communications data that identify sources
Harsh sanctions: Including the creation of new criminal offences for those misusing the powers
COVERT HUMAN INTELLIGENCE SOURCES ACT 2021
Inserting a S29B into RIPA 2000 that creates a Criminal Conduct Authorisation which allows undercover law enforcement agents to break the law in the interest of national security