Page 160 - Deception at work all chapters EBook

Planning Investigations and Legal Background for Tough Interviews 161

Unsurprisingly, the Regulations do not state what constitutes ‘all reasonable efforts’, to advise
users that communications transmissions might be intercepted, but common sense suggests
that a statement in a staff handbook to the effect that employees are allowed to use com-
munications systems on the express understanding that from time-to-time they might be
monitored would be sufficient.

But what happens if a business discovers a serious fraud, where interception of communica-
tions would be proportionate, but has not already advised potential users of that possibility?
Would it be ‘reasonable’ to publish a statement about communications interception and thus
put the crooks on specific notice? Experts argue that it would be ‘reasonable’ to do nothing
until the current suspicions have been resolved and then to issue a policy. The Home Office
and police appear to have relied on this interpretation in a number of recent cases involving
interception of private systems, although the issue has yet to be tested in court.

Exceptions
It should be noted that the Regulations apply to interception of communications transmis-
sions. They do not apply to cases where:

• a room is subject to audio or video monitoring using a linear microphone or other device
that is licensed under the Wireless and Telegraphy Act, for example, by an adapted baby
alarm, infrared or microwave transmitter;

• a linear microphone or other legal device is placed in a room or vehicle which incidentally
picks up only one side of a communications transmission, even if the signal is transmitted
to a receiver using telecommunications lines;

• emanations from a computer are collected on a passive receiver: neither would such a device
contravene the Computer Misuse Act 1990;

• keystrokes entered into a computer terminal are captured by a buffering device and then
transmitted by a legal transmitter to a receiver;

• a voicemail system is accessed after messages have been read by the intended recipient.

However, the techniques that a victim will use in any investigation should be approved as part
of a fraud policy, which sets out authorization and other procedures. A model fraud policy can
be downloaded from www.cobasco.com.

Admissibility of intercept evidence
Section 17 of the Act repeats the principles of the Interception of Communications Act 1985 to
the extent that transcripts of communications intercepted under the authority of a Home Of-
fice warrant – and any matters relating to them – cannot normally be introduced in evidence
in legal proceedings, although there are some exceptions.

There is nothing to prevent intercept evidence being introduced in either civil or criminal
courts when it was obtained by consent or under the authority of the system controller.

Anomalies
If a private communications system is intercepted under the Regulations without employees
and others potentially involved being informed, the behaviour is technically unlawful. If it is
unlawful, it fails the second part of the test of Section 1(2) and should therefore be a criminal
offence. This conundrum is resolved by Section 1(6) which is definitive. Thus it is not illegal