Territorial Extent Commentary on Sections Section 83: Codes of practice about investigatory powers: journalistic sources
334.This section inserts new subsection (2A) into section 71 of RIPA. Section 71 of RIPA requires the Secretary of State (in practice, the Home Secretary) to issue one or more codes of practice relating to the exercise and performance of, amongst other things, the powers and duties conferred under Part 1 of that Act. Part 1 of RIPA makes provision in respect of the interception of communications (Chapter 1 of Part 1) and the acquisition and use of communications data (Chapter 2 of Part 1). Communications data is the “who, where, when and how” of a communication but not its content. New section 71(2A) requires that a code of practice in connection with the exercise of powers in Part 1 of RIPA in relation to the prevention or detection of serious crime must include provision to protect the public interest in the confidentiality of journalistic sources. Under RIPA, a serious crime is one for which an adult with no previous convictions could expect to receive a custodial sentence of three years or more. New section 71(2A) further requires the Secretary of State to consult the Interception of Communications Commissioner and to have regard to any relevant reports which he or she has made.
335.The section responds, in part, to a report, published on 4 February 2015, by the Interception of Communications Commissioner of his inquiry into the police access to communications data of journalists(42). The report recommended that “judicial authorisation must be obtained in cases where communications data is sought to determine the source of journalistic information”. Pending possible further legislation in the next Parliament, the Home Secretary intends to revise the code of practice under section 71 of RIPA to require law enforcement agencies (such as, the police, the NCA and HM Revenue and Customs) to use production orders, which are judicially authorised, under the Police and Criminal Evidence Act 1984 (or the equivalents in Scotland and Northern Ireland) for applications for communications data to determine journalistic sources.