Legality of telephone intercepts – Operation Helios

Report: 12
Date: 1 February 2007
By: Chief Executive and Clerk

Summary

This report summarises the finding of the Investigatory Powers Tribunal that the MPS intercepted phone calls during Operation Helios without lawful authority: it outlines the representations made to the MPA by the Metropolitan and National Black Police Associations; and it describes the action being taken by the MPA.

A. Recommendations

That

1. the Committee notes the decision of the Investigatory Powers Tribunal that the MPS unlawfully made private side phone intercepts during Operation Helios;
2. the Committee notes the concerns expressed by the Metropolitan and Black Police Associations, endorses the assurances given by the Chair of the Authority and supports the efforts to resolve matters by means of alternative dispute resolution rather than continuing litigation; and
3. the Chief Executive should report to the Professional Standards Committee if it appears, after preliminary inquiries, that there may be misconduct issues to be dealt with.

B. Supporting information

1. In November 2006 the Investigatory Powers Tribunal gave a ruling that the MPS had intercepted phone calls made on its own system in the course of the covert investigation known as Operation Helios, without lawful authority.

2. The Tribunal has sole jurisdiction over alleged breaches of the Regulation of Investigatory Powers Act 2000. Its rulings are equivalent to judgements of the High Court. In this case, the ruling came as an interim step in proceedings brought by the National Black Police Association and a number of individuals whose conversations with Supt. Dizaei were intercepted. The Tribunal has still to consider whether compensation should be payable by the MPS to any of the individuals.

3. The Regulation of Investigatory Powers Act 2000 prohibits the interception of phone calls on private and public systems unless there is lawful authority. The Act came into force part way through the covert surveillance conducted as part of Operation Helios. Before the Act came into force, intercepts were carried out in accordance with ACPO protocols. After the Act came into force, they required to be authorised under the Act.

4. Regulations were introduced in 2000 by the DTI to permit organisations to undertake intercepts by way of Lawful Business Practice for a variety of purposes, including the prevention and detection of crime. To be lawful, the system controller (i.e. the MPS) must make all reasonable efforts to inform every person who may use the system that calls may be intercepted.

5. In this case the MPS conceded that while police officers and staff had been warned of the possibility of intercepts, callers in had not been, as required by the LBP Regulations. At the time of the intercepts the MPS believed that it was sufficient to warn one party only, and that appears to have been the intention of the Government when the Regulations were drafted (DTI Lawful Business Practice Regulations Information Note). The MPS argued that the authorisations for the intercepts amounted to a directed surveillance authorisation under the Act which, combined, with one party consent, brought the intercepts within another permitted class. The Tribunal rejected that argument and held that the intercepts were unlawful. The Tribunal must now consider if there was a material breach of the human rights of those whose calls were intercepted, and whether or not to award compensation.

6. The Metropolitan Black Police Association and the National Black Police Association have written to the Authority expressing their concerns about the unlawful intercepts (exempt appendix 1 and 2). They also state their belief that amongst the calls intercepted were calls protected by legal professional privilege (relating to officers who were being advised by Supt Dizaei in his capacity as Legal Adviser to the NBPA). Further, they suggest that in some cases the privileged information was communicated to the MPS’s lawyers in employment tribunal cases, to the detriment of the officers bringing the ET claims.

7. The MBPA and NBPA ask for an inquiry into the extent of the interceptions and to ascertain whether there were any breaches of legal privilege. They also ask that the MPA and the IPCC should consider if there are misconduct issues. The NBPA suggests that the position of individuals bringing ET claims against the MPS may have been compromised by improper use of the records of intercepts. The NBPA also asks that the MPS should settle the legal proceedings, including paying the NBPA’s costs. (The letters from the Associations are circulated as exempt appendices to this report).

8. The Black Police Associations have been assured that their concerns are being taken seriously. The Chair of the Authority has informed the MBPA that the judgement of the IPT does not itself criticise any individuals, and it is not yet clear that the adverse finding reflects personal or institutional misconduct, as distinct from an incorrect view of what was permissible under the law. The Chair has confirmed that if there was any misconduct, the Authority will want to see any individuals responsible for it held to account. At the time of writing this report, further information is awaited from the MPS to enable these issues to be considered and any necessary report made to the Professional Standards Committee.

9. Following intermediation by the MPA, the MPS has agreed to explore options for alternative dispute resolution, with a view to resolving matters without litigation. The MPA is currently convening a meeting between the parties to discuss ways forward. Any further developments will be reported to your meeting.

C. Race and equality impact

The adverse impact of Operation Helios needs no re-statement. The MPA commissioned the Morris Inquiry to review all of the organisational issues arising out of that and other cases of discriminatory treatment of MPS officers and staff. A substantial programme of work is underway in the MPS to implement the recommendations of Morris.

It is clear from the representations received from the two Black Police Associations that this continuing issue of unlawful intercepts has the potential to undermine the post Morris programme of action, and to have a negative effect on staff and community confidence, unless it is seen to be addressed effectively by the MPS and the MPA.

D. Financial implications

Any award of compensation or costs against the MPS will have to be met within existing budgets. At this stage, it is not possible to quantify liabilities.

E. Background papers

None

F. Contact details

Report author: David Riddle, Deputy Chief Executive

For more information contact:

MPA general: 020 7202 0202
Media enquiries: 020 7202 0217/18

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