Out-Law / Your Daily Need-To-Know

Covert surveillance activities need independent oversight, says expert

23 Jul 2015, 5:34 pm

The use of the Regulation of Investigatory Powers Act (RIPA) for cover surveillance should be overseen by independent judges to ensure the appropriate legislation is being used, an expert has said.

The Investigatory Powers Tribunal is currently analysing evidence in a complaint brought by News Group Newspapers against the Metropolitan police.

The newspaper complained about the way that police used RIPA to identify journalists' sources after Andrew Mitchell, the government's then chief whip, was accused of calling police 'plebs', news reports have said.

The complainants said that the Metropolitan police should have gone to a judge to acquire the records, or approached the paper directly. By using RIPA, the police force was able to obtain the data without approval from a judge and without the newspaper's knowledge, The Guardian said.

The police force obtained a week's worth of phone records, including GPRS location data, and 90 minutes of call details from two landlines, The Guardian said.

The officer who approved the application told the tribunal that he did not know that journalists have a right to protect their sources, The Guardian said.

The judges have reserved judgment in the case until an unspecified date, the newspaper said.

“What this case brings to light is the wider need for independent oversight of covert surveillance activities by a judge – a point made regularly whenever the legislation is independently reviewed," said Marc Dautlich, an information law expert with Pinsent Masons, the law firm behind Out-Law.com.

"Whether in any given case the use of the powers in question here under RIPA is proportionate often involves an element of subjectivity, and that is another good reason why independent oversight is needed," he said.

"There are a number of important rulings about the protection of journalists’ sources – Interbrew in 2009 and Goodwin in 1996 being standout. Reading those will make anyone sensible wonder how an act designed for different purposes can credibly be used in this case when other more suitable avenues were available to the police, such as PACE [Police and Criminal Evidence Act], which would involve going before a judge," Dautlich said.