Interception of communication

Interception of communications or miscommunication? Simon McKay, of McKay Law Solicitors & Advocates of Leeds, looks at the reality of the law governing telephone tapping.

Some of the reports in the press in the last week relating to the excessive use by councils and local authorities of intercept telephones were widely inaccurate.
There are a limited number of organisations authorised under the Regulation of Investigatory Powers Act 2000 to intercept and the grounds upon which they can are extremely narrow. There are a limited number of persons capable of applying for an interception warrant which are set out in Section 6 of the 2000 Act and include the Director General of the Security Service, the chief of the Secret Intelligence Service and chief constables.
The relevant Secretary of State cannot issue an intercept warrant unless he or she believes that to do so would be necessary in the interest of national security, for the purpose of preventing or detecting serious crime, for the purpose of safeguarding the economic wellbeing of the United Kingdom or for the purpose of giving effect to the provisions of any international mutual assistance agreement, the circumstances of which would be the equivalent to those in which the Secretary of State would issue a warrant for the purpose of preventing or detecting serious crime. The code of practice on the interception of communications sets out in paragraphs 2.4 and 2.5 its guidance in respect of the concepts of necessity and proportionality.
Even if local and public authorities were more generally capable of applying for interception warrants, the nature of their activities alluded to by the press would not amount to ‘interceptions’ for the purposes of the 2000 Act.

Complex definition
The definition of what amounts to an interception is complex but in its most basic terms can be broken down as follows:
(i)a communication is intercepted in the course of its transmission on either a private or public communications system, and
(ii)the communications system is either monitored or modified (a separate device or other resource has been used to store or record the communication at the time or for later use) so as to make the content available to a person not party to the conversation. There is the important rider –
(iii)the use of a surveillance device to deliberately pick up telephone conversations as opposed to incidentally recording them would not be a breach of Part I but would offend the provisions of the code of practice and usurp one of the express intentions of government in introducing the legislation.
There have been a number of cases that have considered these issues, most notably R v E (2004) in which the Court of Appeal considered the relationship between Part I and Part II of the Regulation of Investigatory Powers Act 2000 has been considered. The effect of the decision is of crucial importance to public authorities carrying out Part II surveillance activities and some police forces have arguably already too precipitously interpreted the decision as creating the opportunity of carrying out surveillance operations regardless of the likelihood of acquiring telephone conversations as part or all of the intelligence or evidence obtained.
This is of concern since it is submitted that the decision of the Court of Appeal is vulnerable to further legal challenge, either on the basis of the interpretation placed on what amounts to an interception or on the grounds of legal certainty.
Since this case and the later case of R v Allsopp & Others (2005) represents what appears to be the ‘last word’ on the issue domestically but the whole question of the legal protection afforded to telephone communications is likely to re-visited in the European Court of Human Rights at some stage.

Current position
The current position in English law at its simplest is that a telephone communication can only be intercepted between two points and both are while the soundwaves o