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160 Deception at Work

Interception of public networks
As far as the interception of communications transmissions on public networks is concerned,
lawful authority comes from a specific warrant issued by the Home Secretary to a short list of
eligible government agencies, such as the police, Customs and Excise or the security services.
Companies and individuals cannot apply for a Home Office warrant to intercept communica-
tions transmissions on public networks.

Interception on private networks
For a private communications system, removal of criminal liability under section 1(2) is
achieved under four main provisions:

• Section 1(6) when the person with the right to control the system gives permission;
• Section 3(1) with the consent of both the sender and the recipient;
• Section 3(2) with the consent of either the sender or the recipient and, for public authorities

only, subject to the surveillance conditions in section 48(2);
• Section 5 under the authority of a warrant signed by the Home Secretary.

Most businesses (and police when intercepting a private network) will rely on permission
of the controller (section 1(6)) which removes criminal liability. However, there is a second
condition of authorization for ‘lawful authority’

Lawful authority to intercept communications on a private network will normally be
derived from:

• a Section 5 warrant signed by the Home Secretary;
• the consent of one or more of the parties to the communication;
• compliance with the Telecommunications (Lawful Business Practice)(Interception of Com-

munications) Regulations 2000 (the Regulations).

The Regulations came into effect on 24 October 2000 and are very important to businesses:

• Section 2(a) of the Regulations states ‘references to a business include references to activities
of a government department, or any public authority or of any person or office holder on
whom functions are conferred by or under any enactment’. This implies that government
departments are put on the same footing as businesses when investigating internal fraud
relating to their statutory obligations.

• Section 3 sets out the conditions for ‘lawful interception’ including 3(1)(a)(iii) ‘for the
purpose of preventing crime’ and then subject to section 3(2) which has three main condi-
tions:
(a) the interception in question is effected solely for the purpose of monitoring or
(where appropriate) keeping a record of communications relevant to the systems
controller’s business;
(b) the telecommunications system in question is provided for use wholly or partly in
connection with that business;
(c) the system controller has made all reasonable efforts to inform every person
who may use the telecommunications system in question that communications
transmitted by means thereof may be intercepted.