I doubt that David Davies MP or many of our chums at the
privacy campaigning groups will be too keen to highlight a huge problem recently
spotted by Sir Paul Kennedy, the former Interception of Communications
Commissioner.
David Davies is well known for advocating that the
procedures about who should be capable of obtaining communications data should invariably
involve a judicial warrant, rather than a the signature of a senior law
enforcement official, supported by an
experienced SPoC (Single Point of Contact) officer. In his (and their) view, a
judge will always be better placed to offer a far better degree of impartial
oversight than “the man at the desk next door.”
Accordingly, he was pleased to support a provision in the
Protection of Freedoms Act 2012 which meant that since last November, Local
Authorities have had to obtain judicial approval before they could acquire any
communications data.
But in his Annual Report, published last week, Sir Paul Kennedy
has commented on the consequences – which is a 63% reduction in the number of applications
by local authorities in the first 4 months of the legislation being enacted. In
his words:“ 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.”
Sir Paul continued: “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 the National Anti-Fraud
Network (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 magistrate in the local court, which increases bureaucracy
and time delays. Often the applicant is not best placed to advise the
magistrate on the communications data process or the conduct that will be
undertaken by the SPoC to acquire the data. In other cases, local authorities have
actually reported that the courts have tried to charge them directly for
attending the court.The figures that have been shared with my office to date
show that no requests have yet been refused by a magistrate.
Taking into account this evidence I question how much value
judicial approvals have added to the process. I have long been a proponent of
the SPOC system and this ensures there is a robust safeguard in relation to the
acquisition and disclosure of communications data. The Joint Committee
conducting the pre-legislative scrutiny of the draft Communications Data Bill concluded
that “in the case of local authorities it should be possible for magistrates to
cope with the volume of work involved in approving applications for authorisation.
But we believe that if our recommendations are accepted and incorporated into
the Bill, they will provide a stronger authorisation test than magistrates can.
Although approval by magistrates of local authority authorisations is a very recent
change in the law, we think that if our recommendations are implemented it will
be unnecessary to continue with different arrangements applying only to local
authorities.” I concur with this sentiment and am very concerned that there is
a serious danger that that the types of crime that cause real harm to the
public (such as rogue traders and illegal money lenders) will not be
investigated properly due to the difficulties with the judicial approval
process.”
So the next time David Davies stands up in Parliament to
lament the awful fate of those many victims of crime who are unlikely to receive
“justice”, I do hope he admits that on this matter he might just have got it
wrong, and that SPoC officers can do a better job than magistrates in ensuring investigators
access the evidence they need to convict those who deserve to go down.
Source:
Section 9.4 Protection of Freedoms Act 2012 (Judicial
Approvals for Local Authority Communications Data Requests)
Image credit:
https://si0.twimg.com/profile_images/1612866153/open_prison_door.jpg
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