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The law underpinning how authorities can use phone-tapping and other forms of surveillance in Jersey turns 20 this year – and it could, finally, be time for an update, according to the watchdog.
The Regulation of Investigatory Powers Law – known as 'RIPL' – commonly comes into play in Jersey when suspects in drugs cases fail unlock to their phones when required to do so by law enforcement.
But it has many other applications – in recent years, communications data has gone beyond helping to target drug trafficking networks, supporting investigations into a range of other crimes and helping to find missing persons.
With the law reaching its 20th birthday this year, and the nature of communications having changed so substantially in line with tech evolution over the past two decades, Express took a look at whether it may be time for a review...
RIPL was introduced in Jersey in 2005.
The law sets clear rules for how authorities, such as the police and security services, can use surveillance to investigate crimes.
It’s designed to strike a balance between ensuring public safety and protecting individual privacy.
Under RIPL, authorities have the power to intercept communications, such as listening to phone calls or reading text messages and emails, with proper authorisation.
They can also carry out covert surveillance, meaning they can watch or follow someone without their knowledge if necessary for an investigation.
Additionally, RIPL allows authorities to access communication records, like details of who someone has called or emailed.
Authorities can also work with informants or undercover agents who secretly help them gather information.
To prevent abuse of these powers, RIPL has strict controls in place.
Authorities must demonstrate that their surveillance is necessary and proportionate to the investigation, meaning it should not be excessive or unjustified.
In practice, RIPL powers might be used to monitor a suspect involved in organised crime, track communications in counter-terrorism operations, or investigate serious fraud or cybercrime.
It is most commonly used in Jersey when suspects in drugs cases fail to unlock to their phones when required to do so by law enforcement.
In 2023, 10 notices were issued requiring the disclosure of the key code to access protected information.
Four of these led to the disclosure of the PIN which enabled a device to be unlocked, while in four other cases charges have been preferred or a prosecution is pending.
Meanwhile, eight interception warrants were approved and one application was refused in 2023.
A total of 215 applications for the acquisition of communications data were approved.
There were six authorisations for intrusive surveillance and seven authorisations for property interference, across seven operations in 2023.
Six of these operations were concerned with the investigation of drug trafficking, and one resulted in a conviction for terrorism offences.
Pictured: Investigatory powers are often deployed in investigations into drug trafficking.
In 2023, there were 23 directed surveillance operations – the majority of which were concerned with drug trafficking.
Jersey law enforcement also used the services of registered covert human intelligence sources in 2023.
In Jersey, the Investigatory Powers Commissioner oversees how these RIPL powers are used to ensure fairness and legality.
The Commissioner is required to carry out certain supervisory functions and make an annual report to the Bailiff on this.
The most recent report – which covers 2023 – concluded that the investigatory powers continued to be "used lawfully, for legitimate purposes, and in the public interest".
In his first annual report as Commissioner, Rt Hon James Wolffe KC FRSE noted that "the relevant authorities may wish to consider whether a review of the Jersey legislative regime would be appropriate in light of developments elsewhere".
He explained that there have been developments in the UK legislative regime which are not reflected in the Jersey law – particularly in relation to interception of communications, and the acquisition and disclosure of communications of data.
The Commissioner also said that "the relevant authorities may wish to consider whether HMP La Moye should, like prisons in the UK, be brought within the statutory regime".
Mr Wolffe's predecessor David Perry KC raised similar concerns in his 2022 report – noting that Jersey's RIPL legislation dates back to 2005.
"It will at some point be necessary to review the legislation to ensure that it meets the needs of Jersey in the twenty-first century," he wrote.
"This is a point that was raised more than once during the course of the inspection process and it is a matter for consideration by those relevant authorities in Jersey best placed to decide when and how any such review might take place."
RIPL in Jersey is based on the UK's Regulation of Investigatory Powers Act 2000 and associated Codes of Practice.
But since Jersey's legislation was introduced in 2005, there have been developments in the UK legislative regime which were not reflected locally.
In terms of the interception of communications and the acquisition and disclosure of communications of data, the UK's 2000 Act has been replaced by the Investigatory Powers Act 2016 and new Codes of Practice.
"The Investigatory Powers Act 2016 responded to the legitimate needs of law enforcement in the context of a changing technological environment," wrote Mr Wolffe in his most recent report.
"The 2000 Act has itself been amended by the Covert Human Intelligence Sources (Criminal Conduct) Act 2021, to provide for criminal conduct authorisations (in recognition that sometimes the effective and legitimate use of a CHIS may involve activity which would otherwise be criminal).
"The relevant authorities may wish to consider whether a review of the Jersey legislative regime would be appropriate in light of developments elsewhere."
And in Guernsey, the maximum sentence for RIPL offences was recently increased to five years to encourage suspected criminals to give police their mobile phone passcodes.
Previously, the failure to comply with RIPL attracted a maximum prison sentences of two years for conviction on indictment, and just six months for a summary conviction.
This meant that many suspects chose not to unlock their phones, as these maximum prison terms were lower than those for the crimes they were suspected of.
But the increase, which came into place in 2023, was designed to "improve the effectiveness of the Bailiwick’s criminal justice framework".
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