H418/03 - Interception and confidentiality

Communications and Article 8

Article 8 protects private and family life, the home and correspondence, including telephone and electronic communications.

Interception involves obtaining a communication during transmission so that its contents become available to someone other than its sender or intended recipient. Listening to a telephone call is a clear example. Under the Investigatory Powers Act 2016, transmission can include some stored communications: do not assume that a message awaiting collection falls outside the law. Communications data instead describes communication, such as who contacted whom, when and from where; ordinarily it excludes content. A list of calls is different from the words spoken, but can still reveal medical appointments, friendships or political activity.

The Act contains a limited exception for specified subscriber data communicated to initiate or maintain access to a service, excluding recorded speech. This does not turn the substance of ordinary conversations into call-records data. Keep the main content/data distinction while recognising its precise statutory boundary.

An interference is not automatically a violation. Article 8(2) requires a lawful basis of sufficient quality, an authorised aim such as national security or preventing crime, and necessity in a democratic society. The intrusion must be proportionate: its extent must be justified by the need, with attention to less intrusive alternatives and safeguards against abuse. A secret, unlimited power is problematic even if its user claims a good purpose.

Consider an original example. Investigators seek one suspect's calls during a planned kidnapping. The prevention of crime is relevant, but they must still identify an appropriate power, justify the target and duration, and follow authorisation requirements. Reading every neighbour's messages indefinitely merely because it is convenient is much harder to justify. Conversely, a targeted, authorised and adequately safeguarded intrusion need not breach Article 8.

RIPA data and its successor

The Regulation of Investigatory Powers Act 2000, usually called RIPA, created a statutory framework for acquiring communications data and conducting covert investigations.

Historically, RIPA Part I Chapter II, including sections 21–22, governed public authorities' acquisition of communications data. It distinguished this from interception of content. Designated officials could authorise acquisition for listed purposes, subject to necessity and proportionality; the existence of a power did not give every official unrestricted access. For example, obtaining a subscriber's identity could help connect a number to a suspected offence, without authorising the reading of all messages sent from that number.

That chapter was omitted in July 2020. The modern principal framework for acquiring communications data is Part 3 of the Investigatory Powers Act 2016, not those old RIPA sections. Section 60A provides an independent-authorisation route through the Investigatory Powers Commissioner. The relevant authority must show a permitted purpose, the specified investigation, operation or other authorised purpose, and proportionate conduct. The Act also contains other routes and exceptions, so independent approval is not an identical requirement for every conceivable acquisition.

The legal question therefore has two stages: classify the information sought, then choose the framework applicable at the time. Applying the old RIPA data provision to a present-day request would confuse a historical power with current law. Equally, saying that RIPA has disappeared entirely would overlook its continuing surveillance role.

An original comparison makes the distinction concrete. A police application asks a provider for the times and locations of a suspect's calls during a specific investigation. That concerns communications data. An application to listen to the conversations concerns content and requires the appropriate interception authority instead. Neither request becomes lawful simply because the information would be useful.

Covert surveillance under RIPA

RIPA Part II continues to regulate important forms of covert surveillance, where observation is carried out so that its subject is unaware of it.

Section 26 distinguishes two categories. Directed surveillance is covert, not intrusive, conducted for a specific investigation or operation, and likely to obtain private information. An immediate response to unexpected events, where seeking authorisation would not be reasonably practicable, is excluded from that definition. Intrusive surveillance concerns covert observation of activity on residential premises or in a private vehicle, involving an observer there or a surveillance device. A device outside can also qualify where it consistently gives information of the same quality and detail as a device inside. Intrusive surveillance has a stricter authorisation framework; a directed-surveillance authorisation cannot simply be used for it.

Under section 28, directed surveillance requires a properly authorised decision-maker who believes it necessary for a listed ground and proportionate to its purpose. Grounds include preventing or detecting crime, but the available ground and authorising official depend on the authority. The law limits which bodies can use which powers. Collateral intrusion means obtaining private information about people who are not the investigation's target; this matters to the proportionality assessment.

In an original example, officers covertly follow a suspected fraudster over several evenings to identify meetings. It is a planned investigation likely to gather private information and may be directed surveillance. Installing a listening device in the suspect's car is potentially intrusive surveillance. An officer briefly follows someone fleeing a robbery as it happens is an immediate response, not automatically the same planned-surveillance category.