Regulation of Investigatory Powers Act 2000

• The principle of journalistic privilege is enshrined under the Police and Criminal Evidence Act 1984 (PACE), as journalistic material is given special protection from seizure by the police. If the police want to seize such material, they must apply to a judge. The holders of the material, for instance journalists and their employers, can resist disclosure of such records.

• There are two distinct sets of powers under the Regulation of Investigatory Powers Act 2000 (RIPA) relating to communications. First, RIPA provides powers to intercept the content of communications, for example, by listening to telephone conversations or voicemail messages (Chapter 1 of Part 1 of the Act). The warrant is signed by the Home Secretary, Foreign Secretary, Northern Ireland Secretary or Scottish Ministers and oversight is provided by Interception of Communications Commissioner.

• Second is the power to acquire communications data, such as records of who contacted whom, when, from where and for how long (Chapter 2 of Part 1 of the Act).

Authorisations for the acquisition and disclosure of communications data are issued by ‘designated persons’ within the organisations seeking the data, for instance a Superintendent in a police force. The senior officer can only approve the acquisition of data where they believe it is necessary and proportionate in the specific circumstances, and they must record their considerations at the time. Oversight is conducted by the Interception of Communications Commissioner through a team of Inspectors reporting annually.

• This inquiry addresses police forces’ use of RIPA powers to acquire communications data in the course of investigations. In two recent, high-profile cases, police have used RIPA powers to obtain material which might be regarded as journalistic material for the purposes of PACE. In the Metropolitan Police’s Operation Alice (the investigation into the so-called “Plebgate” incident and subsequent events), the Metropolitan Police accessed a journalist’s telephone records to establish whether the information provided to his newspaper might have emanated from within the MPS. In Kent Police’s Operation Solar (the investigation into perversion of the course of justice by Constance Briscoe in relation to the trial of Rt Hon Chris Huhne and Vicky Pryce) the police used RIPA powers to obtain material from Associated Newspapers Limited (ANL) after an application by the police for access to the material under PACE had already failed because ANL had successfully claimed in court that journalistic privilege applied.