Regulation of Investigatory Powers Act 2000

Regulation of Investigatory Powers Act 2000

2000 CHAPTER 23

Other Authorisations

Part Iii:  Investigation of Electronic Data Protected by Encryption Etc

Section 54: Tipping-off

285. This section creates an offence where the recipient of a notice (but only one which explicitly contains a secrecy requirement), or a person that becomes aware of it, tips off another that a notice has been served, or reveals its contents. This is designed to preserve, where necessary, the covert nature of an investigation by, for example, a law enforcement agency. It outlines various statutory defences.

286. Subsection (1) limits this offence to occasions where the notice served explicitly demands secrecy.

287. Subsection (2) specifies that the inclusion of a secrecy requirement in a notice must be authorised by the person giving permission for such a notice to be served (or where such a person has himself permission to serve a notice - e.g. a Superintendent in certain cases).

288. Subsection (3) places restrictions on the instances when such a requirement may be imposed.

289. Subsection (4) specifies the maximum sentence for the tipping-off offence. On conviction in the Crown Court, the maximum term of imprisonment is five years. The financial penalties are as for the offence set out in section 53.

290. Subsection (5) provides a defence where the tipping-off occurred entirely as a result of software designed to give an automatic warning that a key had been compromised and where, in addition, the defendant was unable to stop this from taking place after receiving the notice.

291. Subsections (6) and (7) provide a defence where a disclosure is made to or by a professional legal adviser as part of advice about the effect of the provisions of this part of the Act given to a client or his representative; or where a disclosure was made by a legal adviser in connection with any proceedings before a court or tribunal.

292. The effect of Subsection (8) is that the protection in Subsections (6) and (7) will not apply where a professional legal adviser tips off a client with a view to furthering any criminal purpose.

293. Subsection (9) provides a statutory defence where the disclosure is made to a Commissioner or authorised by:

• a Commissioner;

• the terms of the notice;

• the person who gave the notice, or someone on his behalf; or

• a person who is in possession of the data to which the notice relates, as described in section 49.

294. The effect of Subsection (9) is to ensure that, for example, persons within an organisation may be informed about a notice in order to give effect to the notice (e.g. accessing a key or plain text) without this falling foul of the tipping off offence.

295. Subsection (10) provides a statutory defence for a person told about a notice but not about the fact that there was a requirement for secrecy.