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A couple of months ago I raised the issue of whether police in the UK were using the Regulation of Investigatory Powers Act (RIPA) to obtain information which is legally privileged.
Legal privilege is important. In simple terms it means that your dealings with your lawyer are strictly confidential, both in respect of the content of the advice you are given (“legal professional privilege”) and also anything done to assist you in preparing a claim or a defence (“litigation privilege”). In essence, when information is under legal privilege then no court order can oblige you to disclose it to the court or other party, including the police.
It seemed obvious to me that there must be some possibility that police could be using RIPA to obtain information which would be covered by legal privilege. There are about half a million public authority requests for “communications data” every year (that is, information public authorities can get from a telecoms or internet service provider other than the actual content of your communication). Also it is now known that the Metropolitan Police have used RIPA to obtain details of calls made and received by journalists. So, if the police are using RIPA to circumvent the usual protection given to journalists’ sources, there seemed no reason, in principle, why the police would not use the same means to get information which would otherwise be legally privileged.
But what was lacking was evidence: to say something could be happening is not the same as saying that it is happening. Read more
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The news that the UK’s Metropolitan Police had obtained the “telecommunications data” of a journalist so as to identify his confidential source has significant implications for criminal and civil lawyers — and also for their clients.
What the Met did was simple: they merely completed a request form under the Regulation of Investigatory Powers Act 2000 (RIPA) and sent it to the journalist’s mobile telephone service provider. As long as the RIPA request is approved by the appropriate senior police officer, the telephone company provides the requested information by return. This information is not the actual content of a call or voicemail — that would (or should) require an intercept warrant — but all the accompanying “metadata” (a list of calls to and from the mobile, their duration and times, and even the geographic location of the mobile during the call) as well as subscriber information.
For the police, asking for this telecommunications data is routine. Every year the police and other public authorities make about half a million RIPA requests. None of these requests need a warrant, and none need consent. Indeed, the subscriber is not even told the request has been made. All this information is provided silently and easily to the police force or other public body making the request. There are no real safeguards against abuse.
So, if the police can casually use RIPA to obtain the telecommunications data of the political editor of the Sun newspaper, is there any limit on who else they would seek this data on? And even if there was such a limit, how would anyone know that it was not being respected? Read more
The UK government is pushing through emergency legislation.
The Data Retention and Investigatory Powers Bill was published yesterday, and the intention is that it will be an Act of Parliament by the end of next week. A legislative process which usually takes up a year will be truncated into seven days. This is law-making in a hurry. Read more
What would be better than this sentimentality about a thirteenth century manuscript would be for the UK to have proper constitutional guarantees: to make it possible for a defendant to rely on his or her fundamental rights in practical case, and to make it impossible for parliament and the executive to violate these rights. But this would mean that the UK would at last have a mature approach to constitutional rights. Read more
Last weekend the Sunday Mirror reported, almost in passing, that Chris Grayling may be sacked from the UK cabinet:
So Justice Secretary Chris Grayling is expected to get the chop and be replaced by Northern Ireland Secretary Theresa Villiers.
This would be welcome news. Mr Grayling has not been a success as justice secretary and lord chancellor, in respect of either policy making or political leadership. Indeed, it is difficult to imagine a worse ministerial performance. Read more
The Ministry of Justice – which is responsible for the prison system in England and Wales – decided in November 2013 that it will restrict books that can be received by serving prisoners. This week the excellent Howard League drew public attention to this, and yesterday a number of distinguished authors signed a letter of protest.
We need to be clear as to the nature of the policy. The relevant document is here (Word document, see especially pages 45 and 56). It is not a general “ban” on books as such. Prisoners will still have access to the books in the prison library and can have up to 12 books in their cell – but access to any books sent from outside prison – either purchased or sent by friends and family – will only be as rewards for good behaviour. The prospect of books, like trinkets, will be dangled to prisoners as treats. Read more
Very few citizens of the UK appear to have any great interest in constitutional affairs. And, other than those with a passion for devolution of its constituent nations, there are probably a few hundred people who ever give constitutional reform any serious thought.
Many do not even believe that there is even a constitution in place; such things are instead what foreign folk have to cause themselves needless difficulties. A sincere concern with constitutional affairs seems the preserve of the Tory fogey or the academic radical, but is not the stuff of serious politics. Read more
Chris Grayling, the justice secretary and lord chancellor, is attacking judicial review. He has derided it in the Daily Mail, and the department he heads, the ministry of justice, has issued a consultation paper on further “reform”.
It is worth considering what point, if any, is served by judicial review. This will help explain why the government’s proposals to narrow the rights of individuals and representative groups to bring judicial reviews should be of general concern. Read more