Investigatory Powers Bill

Written evidence submitted by the Maritime and Coastguard Agency (IPB 17)

Investigatory Powers Bill 2015 – 16

Public Bill Committee

1.0 The Maritime and Coastguard Agency (MCA)

1.1 The MCA is an executive agency of the Department for Transport (DfT). Based principally in Southampton, but also at a number of other strategic locations around the coast of the UK, the MCA has a staff of about 1100 supported by a further 3500 Coastguard Rescue Officers. Coastguard Rescue Officers are volunteers drawn from all walks of life who are trained and equipped to conduct coast rescue of persons in danger or difficulty around the coast of the UK.

1.2 The MCA’s primary tasks are to –

· develop, promote and enforce high standards of maritime safety

· minimise loss of life amongst seafarers and coastal users

· respond to maritime emergencies 24 hours a day

· minimise the risk of pollution of the marine environment from ships and where pollution occurs minimise the impact on UK interests

· provide Aviation Search and Rescue response, in accordance with Article 12 of the International Convention on International Civil Aviation.

1.3 The principal business activities of the MCA are –

1.4 Search and Rescue Co-ordination and response – fulfilling international obligations to respond to vessels, aircraft or persons in distress without delay and covering the entire UK Search and rescue region, comprising approximately 10,500 miles of coastline and over 1,000,000 square miles of sea and ocean. In 2014 HM Coastguard responded to 18,789 incidents where persons or vessels were in danger or required other external assistance.

1.5 Inspection and Enforcement – enforcing the regulatory standards by following up reports of breaches of safety or pollution legislation, and bringing a range of sanctions to bear against offenders.

1.6 Ship Safety – All types of vessels including large commercial vessels, fishing vessels and recreational craft, as well as the passengers and seafarers who serve on them.

2.0 Executive Summary

2.1 The Maritime and Coastguard Agency wishes to continue having access to communications data under the provisions of the Investigatory Powers Bill to assist in the conduct of search and rescue (saving life at risk), and to prevent and detect maritime crime. In this context maritime crime is specifically offences under the scope of safety legislation applying to ships in UK waters, and any UK ship anywhere. The legislation concerns itself with both maritime safety and pollution prevention.

2.2 The particular requirements of the MCA are to be included as a Public Authority in the name of the Department for Transport, and to have a small number of MCA officers prescribed as being able to authorise access to communications data.

2.3 Without access to communications data the MCA considers that its search and rescue capacity would be impaired, causing a risk to life. The MCA also considers that, without communications data, some of its investigations into maritime crime would be impaired, with a resultant risk to the safety of ships at sea, the safety of the public, and the protection of the environment.

2.3 The MCA therefore seeks to continue to hold the powers required to access all communications data as currently provided by RIPA s21

3.0 Search and Rescue

3.1 HM Coastguard is a public emergency service (accessible through the 999 telephone emergency service) and has a statutory role for providing emergency response to persons in danger of death or injury at sea, within the internationally recognised United Kingdom Search and Rescue Region (UKSRR), and on the cliffs and shoreline of the United Kingdom. It also has a responsibility, through the operation of the UK Aeronautical Rescue Coordination Centre (ARCC), for the provision of emergency response to aviation incidents requiring search and rescue action to save life both at sea and over land within the United Kingdom. HM Coastguard is based at 9 Coastguard Operations Centres (CGOC) and one National Maritime Operations Centre (NMOC) which, amongst other maritime functions, conduct search and rescue coordination and maintain a continuous distress watch on radio, satellite and telephone systems. Staff at these centres respond to emergency calls from vessels or aircraft in distress, or from people in danger on the coast. The sea and coast is a hostile environment, and unforgiving to persons in danger and rescuer alike.

3.2 HM Coastguard’s role presents unique challenges. Unlike the other emergency services HM Coastguard may often not easily be able to determine the status and location of a distress call without sending a response to investigate. In other words, whilst the ambulance service or police can usually resolve any ambiguity in a callers location by having e.g. post code or street name, or by despatching a single land unit to investigate, HM Coastguard may have to launch lifeboats, SAR helicopters and, sometimes, divert shipping to carry out a search to locate a person in danger at sea. Emergency callers on the coast and shoreline may be in remote and inaccessible terrain, with no conventional address information available and few discernible landmarks.

3.3 The use of an Urgent Oral process has been vital to helping to locate an emergency caller in the inherently dangerous maritime environment where time is particularly critical to survival. The use of mobile telephones is widespread and a large proportion of 999 and other telephone calls asking for help are received by HM Coastguard from callers using these devices. The location of a mobile phone user, making an emergency call, from coastal or sea locations, is often imprecise and also usually contained within a large geographical area of probability. Mobile telephone system coverage in coastal and coastal sea locations is not optimal and the location of a caller can be difficult to determine.

3.4 Access to communications data affords more accurate location information e.g. direction of a caller from a mobile telecommunications mast, and other supporting information that can be of use in narrowing down a caller’s location when they are unsure or unable to report where they are. The use of the Urgent Oral process can be vital to helping to locate an emergency caller in the inherently dangerous maritime environment where time is particularly critical to survival.

3.5 In addition, HM Coastguard receives calls and information through normal telephone calls raising concerns for persons missing or overdue on coastal activities or at sea e.g. on coastal walks, climbing cliffs, canoeing, on boating voyages, etc. These routine calls fall outside of the 999 Golden Hour process and, therefore, require appropriate authorisations to be invoked to activate the process for obtaining location information for the missing person(s).

3.6 In this scenario, HM Coastguard uses the information to either more accurately locate a person who has been reported overdue or missing, or to narrow down the area that needs to be covered when searching for e.g. an overdue craft. These search areas can be many hundreds of miles in length and breadth if, for example, the route of an overdue boat is not known for certain. Location data can therefore help to provide the current or last known location or area (the last time their mobile device was connected to a telecommunications mast) and hence reduce the size of area that then has to be searched.

3.7 Persons on board boats who are overdue may be incapacitated or unable to communicate or may be in the water (following a sinking) or in a survival craft (life raft). In addition to or in the absence of any other maritime emergency alerting and locating devices or systems, their previous mobile telephone/device ‘trail’ and history may be critical to finding them before they succumb to the elements.

3.8 The same is true for aircraft that are reported overdue or missing. Although commercial air transport aircraft are almost always under the control of air traffic services (ATS) and have sophisticated and reliable means of being continually tracked and alerting an emergency, light aircraft are not routinely tracked, and nor are they normally subject to close supervision or surveillance by air traffic services. Large parts of UK airspace are ‘open’ and have no requirement for aircraft to make use of or contact ATS. Light aircraft operate over the UK, including crossing over water, with their flight path and route being unknown to anyone except the pilot and, perhaps, a person on the ground. It is common for light aircraft pilots to carry mobile telephones and these devices have been found to be valuable in providing rescue services with location data for aircraft that have gone missing (Australia and New Zealand in particular having good experience of this). Mobile communications devices are routinely left switched-on by light aircraft users when in flight (there being no adverse effects on the aircraft systems) and, if the aircraft crashes or force lands, the device may either survive and continue transmitting, or be used by the user to call for help. In these scenarios the use of location data may be very important for the responding rescue services if the user is uncertain of their position or cannot report it because they are incapacitated.

3.9 Although we have (currently) used the power in limited circumstances, in future it is very likely that locating persons in danger will be more focussed on their personal mobile communications devices than it has been to date. Mariners of all kinds make extensive use of mobile devices, and persons in danger on the cliffs and shoreline of the UK are also highly likely to be carrying a device, which can be used to help locate them if they are, for example missing or reported overdue or in danger. More mobile devices are now capable of connection to the internet and wi-fi hot spots are also far more common including aboard vessels. It is therefore likely that the use of data is only likely to increase in the future increasing the relevance of access.. Any location data that can be obtained from these forms of internet communication will be of assistance in helping a person in distress and risk of death

3.10 HM Coastguard will only make use of the power to obtain communications data when it has no other accurate and/or reliable location information and where there is definite evidence that a person is in danger and requires immediate assistance. Such circumstances include a 999 call or a maritime distress communication system alert, or where it considers that, on balance and given the prevailing environmental conditions and assessing the situation as described by persons reporting concerns for another’s safety and wellbeing, it should take SAR action because life may be at risk. This is known as the Urgency Phase in international SAR procedure.

3.11 Some typical case studies are shown in annex A.

4.0 Inspection and Enforcement

4.1 The MCA is responsible for a range of measures to ensure the safety of ships at sea, the safety of their crew and members of the public, the protection of the environment and assorted other matters. Those measures arise principally under the Merchant Shipping Act 1985 or under statutory instruments. The vast majority of the offences enforced by the MCA are either-way offences with unlimited maximum fines and up to two years imprisonment when taken on indictment. On occasions, the MCA will also investigate under the Fraud Act, when the fraud is associated with maritime conduct. The maximum penalty under that act is 10 years imprisonment.

4.2 The MCA operates a regime of inspection to monitor compliance that is biased towards higher risk categories. This regime is also affected by the UK’s signature of the Paris memorandum, a Europe wide targeted "spot check" system of foreign ships in UK ports.

4.3 These inspections, as well as maritime emergencies and reports from concerned members of the public, revealed 130 potentially significant breaches of Merchant Shipping legislation in 2015. A significant breach is defined as one where there has been a potential or actual serious damage to a ship or equipment or the environment, or where there has been the potential or actual serious injury or loss of life. Significant breaches are passed to the Enforcement Unit, who carry out an investigation within the scope of the criminal justice system. In 2015, 14 of these reports resulted in prosecution, with a number of offenders receiving custodial sentences one of which was for two years. The remainder resulting in either the cautioning of the offender(s), a notification of concern to those persons involved or in a small number of cases no further action being taken, either due to a lack of evidence or the discovery that no offence had been committed.

4.4 An analysis of those investigations not concerning pollution reveals that much enforcement work is directed towards the safety of the travelling public, most particularly smaller vessels around the UK coast that offer leisure trips.

4.5 Compliance with safety legislation is a duty placed upon the owner, operator, master and crew of a vessel jointly and separately. For larger, commercial vessels that trade internationally, a mandatory survey and certification system, combined with the diligence of ship officers, generally ensure that the vessel remains compliant with the legislation. However, smaller vessels, those trading solely within the UK and fishing vessels are often commanded by the owner in person, and are less likely to voluntarily seek continual compliance. Further, investigations into the activities of smaller unlicensed vessels carrying passengers can be resource intensive and difficult to pursue.

4.6 In limited cases, communications data can therefore be vital to ensuring compliance. Experience has shown that much ship’s business is now carried out using phones, faxes and e-mail on mobile and satellite networks. For example, just like on the roads, a ship’s officer distracted by being on the phone can lead to collision and groundings. Communications data can be crucial in determining if that occurred. Further, commercial fishing from an unregistered boat (a Merchant Shipping offence) can often only be detected through mobile phone contact data.

4.7 Some typical case studies are shown in Annex B.

5.0 Existing Statutory Powers

5.1 With regard to Search and Rescue, the only statutory powers specifically available to the MCA are those that compel the master of a ship to co-operate with HM Coastguard during an incident, and under certain conditions. These powers cannot in any way be applied to the issue of access to communications data.

5.2 With regard to enforcement of safety and pollution legislation, specifically appointed persons enjoy powers granted under section 259 of the Merchant Shipping Act. These powers confer rights of entry into premises or ships, and powers to examine, photograph and copy items on board ship including documents. They can also compel any person to attend a specified place and give information to assist an investigation.

6.0 Oversight

6.1 The MCA is subject to inspections approximately every 18 months by Inspectors from the Interception of Communications Commissioner’s Office (IOCCO). At each inspection it has been noted that although the number of times the MCA use the powers to access data is low, their use of the power is very appropriate.

7.0 Police involvement

7.1 Although both the Coastguard and the Enforcement Unit will on occasions work with the local police, the specialist expertise for carrying out such work lies with the MCA.

7.2 Firstly, Maritime Search and Rescue is a specialist environment which requires specialist skills and equipment that police forces do not have. The use of outside bodies to obtain communications data would not be practical for a 24 hour emergency service, where time and the prompt application of specialist expertise are critical factors in safeguarding life.

7.3 Secondly, the enforcement of the myriad of Merchant Shipping legislation requires not only investigatory skills but a detailed sector knowledge. The majority of Enforcement Officers hold the highest maritime professional certification possible and have held command at sea. Familiarity with maritime matters along with an understanding of the terminology used is essential for a thorough investigation of offences.

8.0 The Foreseeable Consequences of Not Being Listed under the new provisions

8.1 With regard to search and rescue the foreseeable consequences are as simple as they are drastic – more people in danger at sea or on the coast could lose their lives, because the means to help locate them rapidly is denied to HM Coastguard. A large percentage of emergency incidents handled by HM Coastguard involve men, women and children either on board recreational craft or on the coast. These people are not professional mariners and therefore far less aware of the ever present danger presented by the sea. Many of them are holidaymakers who are not fully aware of their location – and are particularly likely to panic and become confused if they get into danger.

8.2 With regard to inspection and enforcement the consequences would be that investigations would be unnecessarily costly to the public purse, or that within the scope of other existing powers the investigations would stall. Costly or stalled investigations diminish the MCA’s power to enforce the legislation, and a knock on effect diminishes the deterrent effect of prosecution on those who might be considering acting unlawfully believing they will get away with it. This in turn has a further effect on the ability of the MCA Surveyors and Inspectors to ensure compliance and effect change to ensure a safety culture is embedded on all vessels, harming safety at sea, and of the public, more generally.

8.3 The end result will be a threat to the effectiveness of the Maritime and Coastguard Agency, and a threat to public safety.

Annex A – MCA HM Coastguard

1. West Wales – a person was reported missing and was believed to be suicidal. Coastguard units were mobilised to search a large area of dangerous cliff terrain at night. During the initial search the person called home on several occasions. His position was determined by the use of communications data, specifically the particular cell he was connected to. This reduced a potential 12 hour search to less than one hour, and the person was subsequently found and protected from further harm.

2. South Wales – a young person was rescued from the sea having been cut off by the tide. His emergency call to the Coastguard was made on a mobile phone, but the network operator denied access to communications data. By committing a huge amount of resources and by great good fortune the person was rescued but not before he had suffered immersion injury, from which he nearly died. Access to communications data would have greatly reduced the response time.

3. East Anglia – a family holidaying on board a hired motor cruiser went aground in darkness in a remote area on the River Bure on a falling tide. They called for help by mobile phone but had no idea of their position. This could have been determined by access to communications data but this information could not be obtained resulting in an air search of the Norfolk Broads for a relatively minor incident. RIPA data was not available to HM Coastguard at this time and an extended land search was conducted to locate them.

4. South coast – A yacht was reported overdue and late arriving at its destination. A RIPA request for location data was eventually made (following extensive other communications enquiries using conventional radio and telephone processes) and an approximate area, where the yacht skipper’s phone had connected to a telecommunications mast, was provided. This enabled the Coastguard to task lifeboats to search in this area and locate the craft and confirm that it was, in fact, safe and only very delayed.

5. Cornwall – An e-mail was received sent by a person a few hours previously who was on the shore line, in the dark, with an incoming tide. The police checked the persons address and found no one at home. Location data was obtained and the person was located safely inland. A full, costly and time consuming coastline search was thus avoided.

Annex B – MCA Enforcement Unit

1. Northern Ireland - FV Karen is a 17.5m long fishing vessel operating from a port in Northern Ireland. The vessel ran aground. Investigations showed owner/skipper was alone in wheelhouse. Communications data showed that he was on his mobile phone when it grounded. He was convicted of Merchant Shipping safety offences and heavily fined.

2. South Coast - the yacht Liquid Vortex sailed from the Solent towards the Thames with a forecast of poor weather issued. Shortly after departure from the Solent the vessel was hit by severe weather. The vessel declared a distress resulting in a major SAR operation. Communications data was used to identify phone calls made between the owner of the yacht and the Skipper. The evidence was used in the subsequent court case.

3. Scotland - this involved a ship that grounded in suspicious circumstances off the Isle of Mull, causing the Secretary of State to use his powers to intervene in the salvage and clean-up operation. At the time the officer of the watch was suspected of having been using his mobile phone to make a personal call, which distracted him from making a vital alteration of course. This incident occurred prior to RIPA and without access to communications data the MCA was unable to pursue this line of enquiry.

4. West Country - a fisherman from St Austell, Cornwall used a fax machine in a local hotel to send forged documents to the MCA. A RIPA request was completed and the MCA were able to prove the offence by identifying the hotel and when the fax was sent. The fisherman was a regular in the Hotel and supplied them with shellfish. He was successfully prosecuted for fraud and received a fine totalling £14k. Although fax machines are used less frequently, smart phones are now commonly used for some of the tasks that fax machines did previously. If we had the IP address of that phone, we may have been able to show it logging onto the public Wi-Fi in the hotel at the relevant time, or indeed sending the forged documents directly from that phone.

5. Ongoing investigation – this involves a yacht which sank in the Atlantic in May 2014 with the loss of all four crew. Communications data obtained is being used to identify and verify dates and times of contacts between the yacht and its UK based operator prior to the loss of the vessel.

6. The future - Smart phones are in common use thought the Maritime world.  Most of the larger vessels (including fishing vessels) have Wi-Fi hot spots which smart phones can connect to. This could provide vital evidence in a range of enforcement situations.

a. For example if  a suspect is a member of the ship’s crew, and  connects his/her smart phone to the vessels Wi-Fi network, the Wi-Fi network then connects to a "node" and internet traffic is then available. If the Enforcement Unit were able to obtain the IP address for the smart phone, then evidence would be available regarding the vessels position when it connects to the node, thus proving that the suspect was on board the vessel.

b. Or regarding an example of a collision between vessels, knowing the IP addresses of the watch keeper’s smart phones etc., and evidence of heavy traffic use we may be able to prove the offence of failing to keep a proper lookout as he was using the internet instead of looking where he was going.

March 2016

 

Prepared 24th March 2016