The RIPA s.49 notice: when failing to disclose is an offence

Under s.49(1)(a) of the Regulation of Investigatory Powers Act 2000, section 49 applies where any protected information has come into the possession of any person by means of the exercise of a statutory power to seize, detain, inspect, search or otherwise to interfere with documents or other property, or is likely to do so.

Section 53(1) says that a person to whom a section 49 notice has been given is guilty of an offence if he knowingly fails, in accordance with the notice, to make the disclosure required by virtue of the giving of the notice.

Under s.49(2), if a person with the appropriate permission under Schedule 2 believes, on reasonable grounds, that a key to the protected information is in the possession of any person, that a disclosure requirement is necessary on grounds falling within subsection (3) or for the purpose of securing the effective exercise or proper performance by any public authority of any statutory power or statutory duty, that imposing it is proportionate to what is sought to be achieved, and that it is not reasonably practicable for the person with the appropriate permission to obtain possession of the protected information in an intelligible form without the giving of a notice under that section, that person may by notice to the person he believes to have possession of the key impose a disclosure requirement in respect of the protected information.

The RIPA Part III Code of Practice (para 3.38) says the person giving appropriate permission and, where different, the person with that permission must believe that the imposition of a disclosure requirement by a notice is necessary.

Schedule 2 to the Regulation of Investigatory Powers Act 2000 says that, subject to the other provisions of that Schedule, a person has the appropriate permission in relation to any protected information “if, and only if, written permission for the giving of section 49 notices in relation to that information has been granted” — in England and Wales, by a Circuit judge; in Scotland, by a sheriff; or in Northern Ireland, by a county court judge. Paragraph 4 of that Schedule applies to protected information falling within section 49(1)(a), (b) or (c) which is not information in the case of which paragraph 2 or 3 applies; paragraph 4(2) says that, subject to paragraph 6, where the statutory power was exercised, or is likely to be exercised, by the police, the police have the appropriate permission in relation to the protected information, without any grant of permission under paragraph 1.

Paragraph 2 of that Schedule applies in the case of protected information falling within section 49(1)(a), (b) or (c) where the statutory power in question is one exercised, or to be exercised, in accordance with a warrant issued by the Secretary of State or a person holding judicial office, an authorisation under Part III of the Police Act 1997, or a targeted equipment interference warrant issued under section 106 of the Investigatory Powers Act 2016. Paragraph 2(2) says that, subject to sub-paragraphs (3) to (5) and paragraph 6(1), a person has the appropriate permission in relation to that protected information (without any grant of permission under paragraph 1) if the warrant or authorisation contained the relevant authority’s permission for the giving of section 49 notices in relation to protected information to be obtained under the warrant or authorisation, or if, since the issue of the warrant or authorisation, written permission has been granted by the relevant authority for the giving of such notices in relation to protected information obtained under the warrant or authorisation. Paragraph 2(9) says that protected information that comes into a person’s possession by means of the exercise of any statutory power which is exercisable without a warrant, but is so exercisable in the course of, or in connection with, the exercise of another statutory power for which a warrant is required, shall not be taken, by reason only of the warrant required for the exercise of that other statutory power, to be information in the case of which paragraph 2 applies.

Paragraph 6(2) of that Schedule says that, subject to sub-paragraph (3), a constable does not by virtue of paragraph 1, 4 or 5 have the appropriate permission in relation to any protected information unless he is of or above the rank of superintendent, or permission to give a section 49 notice in relation to that information has been granted by a person holding the rank of superintendent, or any higher rank.

Section 53(5) says a person guilty of an offence under that section is liable, on conviction on indictment, to imprisonment for a term not exceeding “the appropriate maximum term” or to a fine, or to both; and, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both. Section 53(5A) defines “the appropriate maximum term” as five years in a national security case or a child indecency case, and two years in any other case.

The s.53(1) offence quoted above is worded as an offence by “a person to whom a section 49 notice has been given”. This page does not cover an officer simply asking for a PIN during a search or an interview; that is covered in more depth, including how to tell a request from a notice, on rightsandlimits.com’s phone passwords page.