Conversations
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.”
