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'Marked improvement' in quality of comms data applications for misconduct

The IPCO has said that, despite an improvement in the quality of applications made for misconduct investigations, the area will remain an area of focus for the 2022 inspections.

There has been a “marked improvement” in the quality of applications for communications data (CD) made in relation to internal misconduct investigations, the Investigatory Powers Commissioner’s Office (IPCO) has said.

It has followed issues being raised in both 2019 and 2020 that aspects of criminal conduct were being conflated with non-compliance with misconduct regulations.

Generally, the standard of compliance relating to CD applications from forces (Local Enforcement Agencies) has remained high.

Internal misconduct investigations, however, will remain a primary focus for the 2022 investigations - and were one of two areas of concern raised over the use of this power by the Investigatory Powers Commissioner.  

Sir Brian Leveson’s report sets out that: ‘[In 2019/20] all too often our inspections had identified cases where aspects of criminal conduct had been conflated with simple non-compliance with police misconduct regulations.

‘While clearly demonstrating bad behaviour or breaches of internal discipline, applications did not sufficiently explain why the conduct was of such a degree to amount to an abuse of the public’s trust in the office holder.’

In May 2021, IPCO and OCDA issued guidance on the minimum expectations for all applications that cite ‘Misconduct in Public Office’ and other related offences in order to be considered for authorisation.

Today’s report underlines: ‘The message from the IPC remains clear: all applications to acquire CD must reach the criminal threshold and the reasons for why that criminal threshold has been met must sufficiently be described within an application.’  

As of the 2021 inspections, close scrutiny applied by the Office for Communications Data Authorisations (OCDA) has meant more applications are being returned - either for rework or rejected entirely.

Meanwhile, malicious communications and minor offences under the Public Order Act were a further area of concern.

There is a “pressure on police to ‘do something’” when unpleasant or offensive material is posted online, the Commissioner has said.

What it has meant, however, is that CD is being sought “for what could be described as little more than a public falling out or name calling”.

The Commissioner maintains that criminal conduct is clear in many cases, adding that applicants need to ensure they have considered both the privacy implications associated with the acquisition of CD and the right to Freedom of Expression.

Among the other powers considered in today’s report was CHIS intelligence.

LEAs have shown a high degree of compliance with the statutory framework with grounds of necessity and proportionality “generally articulated well”.

There remain, however, examples where the risk of interference with the private/family life of those who are not the subject of CHIS activity is “not sufficiently addressed”.

The report points to the poor practice of templated or formulaic entries – highlighting that considerations of collateral intrusion need to relate specifically to the individual CHIS.

Meanwhile, in early 2021, Police Scotland reported “several significant failures” to the IPCO relating to the use of undercover operatives.

The majority were linked back to poor supervision which had led in some cases to non-compliance with internal standard operating procedures.

Areas needing action were outlined, including a “questionable” management of risk during operational deployments, limited engagement with the Covert Authorities Bureau and a failure to retain, review and destroy covertly obtained material.

The Chief and Deputy Chief have been described as “strong advocates” for developing the improvements.

The Commissioner has described the force as “an excellent example of how we can work with public authorities to encourage the development of good practice and promote improvements in compliance standards.”

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