monday 30th november 2015

the national crime agency - an organisation in chaos?

In this time of some uncertainty, heightened state of alert and perceived insecurity one thing we need to be sure about is that those who are in charge of our security know what they are doing. Apparently they don’t.

There were several reports over the last week in relation to trials which have collapsed because the National Crime Agency (NCA) did not follow the rules properly; where they acquired warrants to seize property unlawfully or set up operations for surveillance of suspects.

It is a real concern to discover that the NCA may not have been following the proper procedures for over 10 years, at this most basic of basic levels. These rules aren’t just ‘red tape’ getting in the way of operational efficiency. The powers of the state are a privilege which demand that the NCA must act within the laws and procedures, but it adds insult to injury when their failure to adhere to those rules ends up costing us tax payers millions of pounds because trials collapse or the NCA end up having to pay penalty’s for breaches of the Regulations.

At this time of national insecurity, the Government may feel some pressure to enable the authorities to act a bit more freely. We have already heard it said that the recent terrorist atrocities may play into the hands of those in power who want to impose greater constraints on citizens through the so called ‘snoopers charter’.

We have experienced similar errors by the authorities recently which perhaps emphasises the real danger in having powers which are incorrectly interpreted or fundamentally misunderstood. Whilst the NCA are getting it in the neck in the recent reports, the problem is wider.

In two cases in which we acted recently, the police, the NCA and trading Standards were involved and all three agencies were acting under a complete misapprehension of the law.

The cases concerned the recovery of mobile telephones or lap tops where the police required disclosure of passwords and PINs. In both instances the investigator advised that failure to give the information to them would result in prosecution and that the suspects faced up to 2 years imprisonment for refusal to comply. In both instances this was challenged, and in both instances the investigators had no option but to back down, due to their misinterpretation of the law.

Under the Regulation of Investigatory Powers 2000, investigators can demand ‘passwords’ for electronic devices (the Act refers to these as ‘keys’ as opposed to passwords). However they must obtain a written order for this from a Judge (District or Circuit). This is very unlikely at the police station stage. The device is usually seized at the time of arrest so the prospect of this being done before interview is unrealistic. Simply asking in interview doesn’t cut it, and serving a form/notice isn’t enough. The notice has to be issued by a court.

I can see how officers may believe they can make the demand at the police station. It seems they have missed completely the reference to schedule 2 of the Act which requires per s 1(1) that the appropriate person (i.e. the police officer) has ‘written permission’ from a Judge.

Even then there are further requirements for example the suspect MUST be given the opportunity to consider the request and be given time to comply, under section 4 of the Act.

So as the government, or those proposing to bring in the ‘snoopers charter’, may just refer to the new powers as ‘tidying up’, my view is that its not the powers that are a mess, its those who have the power to use not knowing how they work; that’s the problem.

If you think you may have been affected by The NCA's failings contact Damian Wall.

Damian Wall is a Solicitor in our Crown Court and Regulatory Department. For more information or for further advice, contact the office on 0161 8279500.