Section 9 of Police & Criminal Evidence Act (PACE) provides that "a constable may obtain access to special procedure material for the purposes of criminal investigation by making an application under Schedule 1 and in accordance with the Schedule". Section 9 has been successfully invoked in a rash of PACE applications this summer by police forces across the country. However, in a recent ruling following an application brought by the Suffolk Constabulary’s fraud squad against NTL, the respondent successfully argued that, due to the provisions of the recently enacted Regulation of Investigatory Powers Act (RIPA), it could not comply with the order being sought.
The fraud squad was investigating a multinational conspiracy to defraud, where the alleged conspirators were conducting their affairs almost entirely by e-mail. As a consequence, an order was sought to allow the police access to computer data held by NTL, which was the internet service provider. The difficulty for NTL was that it deleted all data over six hours old as a matter of practice but the PACE application imposed an obligation on it not to destroy or dispose of any stored data from the date the application was served.
Although NTL was not disputing that it was technically able to do this, under Section 1 of RIPA, such action by NTL would amount to a criminal offence. To compound the problems of NTL further, Suffolk Constabulary’s fraud squad conceded to the court that one application would not be sufficient, as it would only enable it to gain a snapshot of activity of the alleged defrauders. It was therefore made clear that several further applications would have to be made against NTL, perhaps almost on a weekly basis. Despite the obvious conflict being faced by NTL, it also disputed the application on the grounds that the applicant had not exhausted other methods of obtaining the material, for example, by applying for an intercept warrant under RIPA. The fraud squad argued that, while such a warrant would allow it to continue monitoring the activity of the suspects, the act prevented any material it obtained being used as evidence in court. Despite this, the court felt bound by a previous authority that found an order under PACE can only be granted when all other practical methods of obtaining disclosure have been exhausted by the applicants without success. As the fraud squad had not attempted to obtain a warrant under RIPA, the court in this case was not satisfied that the application under PACE could succeed. Although the court did not comment further on NTL’s argument that there existed an irreconcilable conflict between the PACE application and its obligations under RIPA, it did express sympathy with the very difficult position it faced.
Sarah Thomas is an assistant solicitor in the media and entertainment team at Charles Russell.