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Tipping off paras 10.7 to 10.13

Tipping off

10.7 Section 49 notices may contain a provision requiring the person to whom the notice is given and every other person who is permitted to or who necessarily becomes aware of it or of its contents to keep secret the giving of the notice, its contents and the things done to comply with it. The inclusion of a secrecy requirement in a notice requires the consent of the person granting permission for the notice to be given or for the person giving the notice to have that permission.

10.8 This secrecy requirement is designed to preserve - but only where necessary - the covert nature of an investigation and to deter deliberate and intentional behaviour designed to frustrate statutory procedures and assist others to evade detection.

10.9 The circumstances in which a secrecy requirement may be imposed are restricted in section 54 of the Act. There are two conditions;

  • the first condition is that the protected information has come, or is likely to come, into the possession of the police, SOCA, HMRC or the intelligence services;
  • the second condition is that the means by which the information was obtained needs to be kept secret in order to maintain the effectiveness of an investigation or operation or of investigative techniques generally, or in the interests of the safety or well being of any person.

10.10 Any public authorities other than those specified in section 54 may not include a secrecy requirement in their disclosure notices

10.11 In imposing any secrecy requirement it is enough for any person giving consent for that requirement or giving a notice including such a requirement to have considered that there is a particular person from whom it is reasonable to withhold the information.

10.12 Where a secrecy requirement is imposed, the notice must make this clear and the person given notice and any other person who needs to know about the notice should be made aware explicitly of that requirement. The notice should also inform the recipient that he (or she) may nonetheless approach a professional legal adviser for advice about the effect of the provisions of Part III of the Act and that he (or she) may revoke any key that is disclosed provided the underlying reason for its revocation is not disclosed.

10.13 The tipping-off offence is committed by a person who makes a disclosure to any other person of anything that he (or she) is required by the section 49 notice to keep secret.

Comments

Note also the comments in para 6.8 in "Special circumstances requiring disclosure of a key" about the role of the Chairman of the Financial Services Authority, who has even less power than the RIPA Commissioners do in regard to RIPA Part III, but who, according to para 6.8, also needs to be informed if a regulated Financial Institution is involved.

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