Out-Law News 3 min. read

Police chief's phone tap may have been unlawful


Metropolitan Police Commissioner Sir Ian Blair came under fire yesterday for secretly taping telephone conversations with the Attorney General and members of the Independent Police Complaints Commission (IPCC) – and his actions may have been unlawful.

Advert: Infosecurity Europe, 25-27 April 2006, Olympia, LondonConversations with a journalist and an unnamed member of the Police Chief’s family were also recorded.

According to the Met Police, Sir Ian telephoned Attorney General Lord Goldsmith yesterday to explain that he had taped their conversation because they were discussing a complex issue – which happened to be wiretapping – and he thought it would be helpful to have a record of what was being said.

It is standard practice for senior officials such as Sir Ian Blair or Lord Goldsmith to ask staff members or civil servants to listen into their telephone conversations and keep notes. But on this occasion, according to the Met, there was no note-taker available.

Sir Ian apologised to the Attorney General for not telling him the call was being recorded at the time and the Attorney General has accepted that apology.

The Commissioner also recorded three conversations with senior IPCC personnel, two of which were made on the date on which John Charles de Menezes was killed by police officers in the belief that he was a suicide bomber. The IPCC is now investigating the shooting, and Sir Ian is under investigation over allegedly misleading statements he made at the time.

According to the Met, the conversations were taped “to provide an absolute record of what was said in clearly highly sensitive and important telephone calls.” It stresses that the police service has not sought to conceal that conversations were recorded and volunteered this information to the IPCC.

The Met adds that at the end of the call to the Attorney General, Sir Ian immediately made a call to a member of his family and, as the machine did not disconnect this fifth call was also accidentally recorded.

The sixth and final recorded call was made to Ian Katz of the Guardian – with whom the Commissioner had been giving a series of face-to-face recorded interviews. According to the Met, the final interview took place over the telephone and was therefore also recorded, as is normal practice for the Commissioner's interviews with journalists.

But were the recordings unlawful?

The position is largely governed by the Human Rights Act, which ensures the right to respect private and family life, home and correspondence; the Regulation of Investigatory Powers Act (RIPA), which regulates the interception of communications and the surveillance of people and premises; and the Data Protection Act (DPA), which covers how personal data is used and stored.

According to Fiona Caskey, an Associate with Pinsent Masons, the law firm behind OUT-LAW.COM, since Lord Goldsmith was not aware that the conversation was being recorded it is possible that the recording was unlawful under RIPA and in breach of the first principle of the DPA.

She explains:

“The definition of intercepting a communication under section 2 (8) of RIPA is broad enough to cover recording a telephone conversation so as to make it available subsequently. Whether it gives rise to criminal or civil liability depends on whether Sir Ian can argue that it was done 'with the consent of a person having the right to control the operation or use of the system. It may be that he would argue he was that person.”

Interception without such consent is a criminal offence punishable by up to two years' imprisonment.

With regard to the DPA, the position will depend on who the data controller of the recording is and what the purpose of the recording is. According to Caskey:

“If the recording was for official police business and the Met is the data controller it may try to rely on one of the exemptions in the Act; but if the recording was unlawful under RIPA, it would automatically be unlawful under the DPA too. If, however, the recording was not for official police business but was something Sir Ian was doing for the purpose of his personal affairs he may be able to rely on the domestic purposes exemption – meaning that he wasn't in breach of the DPA regardless of the position under RIPA. Reliance on this exemption for data protection purposes would, however, raise the interesting question of whether he could (or should) rely on having the system controller's consent to the monitoring in order to avoid criminal liability under RIPA.”

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