RIPA John Riddell Weightmans LLP 12 th February

RIPA John Riddell Weightmans LLP 12 th February 2015 www. emlawshare. co. uk

Covert techniques available under RIPA • Directed surveillance – covert surveillance but not intrusive so not carried out at residential premises or in private vehicles; specific investigation obtaining private information about a person. • Covert human intelligence sources (CHIS) includes undercover officers, public informants and people who make test purchases. The CHIS will covertly establish a relationship to obtain and disclose information • Communications data - a local authority cannot authorise the acquisition of traffic data only information about use of postal or telecommunication system that does not include contents; or information held by a person providing a postal/telecom services www. emlawshare. co. uk

Article 8 of the European Convention of Human rights – the right to privacy • All local authorities must act in accordance with the Human Rights Act. • Covert surveillance is an invasion of a person’s privacy and must therefore be in accordance with article 8, the right to privacy. ‘Article 8 – Right to respect for private and family life Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. ’ www. emlawshare. co. uk

STATUTORY MATERIAL • RIPA – as amended. • SI 2010 480 – Authorisation of obtaining communications data – enclosed in pack. • 2010 521 – Authorisation of CHIS and directed surveillance – enclosed in pack. • The codes of practice – enclosed in pack Covert surveillance and property interference December 2014. Covert Human Intelligent sources – December 2014. Communications data – September 2010. www. emlawshare. co. uk

Who can authorise surveillance? • Councils - Director, Head of Service, Service Manager or equivalent. Head of Paid service where enhanced authorisation required for surveillance of legal consultations. • If in doubt over the rank of authorising officer required contact the monitoring officer. www. emlawshare. co. uk

FACTORS TO CONSIDER IN GRANTING AN APPLICATION • preventing or detecting crime or preventing disorder. • The Crime threshold increased for directed surveillance only by virtue of SI 2012/1500 (amending SI 521/2010) • Only authorise directed surveillance where the matter involves a criminal offence punishable by a maximum custodial sentence of six months or more or are related to underage sale of alcohol and tobacco. • Examples - serious criminal damage, dangerous waste dumping and serious or serial benefit fraud. • Excluded - littering, dog control, fly posting. • The surveillance must also be necessary and proportionate (Article 8 ECHR. ) www. emlawshare. co. uk

JUDICIAL APPROVAL • Required for the use of directed surveillance, use of a CHIS and acquisition of communications data. (Ss 37 and 38 of the Protection of Freedoms Act 2012 which amended RIPA - Ss 23 A and 23 B. ) • The designated officer with the local authority must grant the authorisation as before. The order, or its renewal, must then be approved by a Magistrate www. emlawshare. co. uk

MAKING THE APPLICATION • authorisation • application for authorisation – annex B 2012 Home Office Guide • hearing date - Magistrates Court – Provide court with the original RIPA authorisation – all supporting documentation www. emlawshare. co. uk

THE HEARING • An emergency out of hours service can be used in exceptional circumstances • The hearing in private before a single magistrate • Designated local authority officer provides sworn evidence. www. emlawshare. co. uk

THE DECISION • The test - whethere were reasonable grounds for making the application and whether it was necessary and proportionate. • In the case of directed surveillance they will consider whether the crime threshold has been met. • The Magistrate will complete the form appearing at annex B. • The Magistrate will approve or refuse the application. • The only possible appeal is by way of judicial review. www. emlawshare. co. uk

TIME LIMITS FOR AUTHORISATIONS • Directed surveillance – 3 months • CHIS – 12 months • Communications data – Valid for a month from Magistrates approval. • Where a renewal is sought the local authority must seek that renewal internally from the designated officer and then make the application to the Magistrate www. emlawshare. co. uk

The Communications Bill 2013 • This bill seems to have been killed by the opposition of the Liberal Democrats • The bill generally widens the powers of law enforcement officers to obtain data a. Nd the obligations of data providers to retain data. www. emlawshare. co. uk

MONITORING OF ACTIVITES • The Act is regulated by a number of Commissioners. – Chief Surveillance Commissioner regulates directed surveillance and CHIS activity - they carry out inspections and produce annual reports. • Records relevant to authorisations should be retained (for a period of three years according to the code of practice) and made available for inspection by the Commissioner. www. emlawshare. co. uk

ENFORCEMENT AND PENALTIES • Enforced through criminal and civil liabilities. • The unlawful pursuit of any of the surveillance described in the Act can lead to criminal liability. • S 79 of RIPA states that the director of a body corporate (i. e. local authority) and the body itself can be held liable. • Complaints over the exercise of RIPA powers and breaches of the Human Rights Act - Investigatory Powers Tribunal. • The Tribunal rules of 2000 govern its conduct – cancel or quash an authorisation – award compensation. www. emlawshare. co. uk

Relevant Decisions of the Tribunal Paton v Poole Borough Council (2010) – Directed surveillance to see if a fraudulent address was being used to establish presence in a school catchment area was unlawful. It was not necessary to detect or prevent crime. – This would be unlikely to get this far now because: • a) It would not pass the 6 month custodial sentence rule for directed surveillance • b) A Magistrate would be unlikely to authorise it. www. emlawshare. co. uk

Relevant Decisions of the Tribunal C v The Police (2006) – A directed surveillance authorisation was not granted for surveillance by private investigators of a man making an application for an injury on duty award under the Police Pension regulations. – This is a common sense decision to allow local authorities to protect their employment interests. It is submitted that the case applies by analogy to obtaining surveillance evidence in civil cases. In both cases, however, Article 8 of the Human Rights Act applies and the acts must be lawful, necessary and proportionate. A reason and rationale should be given for obtaining the evidence. www. emlawshare. co. uk

• Mr and Mrs H v The Police Federation of Great Britain. • Video recording of an officer’s car at his home and police station during a police complaints investigation was intrusive and directed and should have been authorised. www. emlawshare. co. uk

Relevant Decisions of the Tribunal N v Police (2009) – Where existing public CCTV is used for a specific investigation directed surveillance is necessary. – Authorisation was given after the CPS made the decision not to prosecute. – There was an order that there had been a breach of Article 8 and an order to destroy the evidence. www. emlawshare. co. uk

Relevant Decisions of the Tribunal Vaughan v South Oxfordshire District Council – Council tax home inspections do not constitute surveillance so no RIPA authority was necessary. www. emlawshare. co. uk

Relevant Decisions of the Tribunal Gibbon v Rugby DC (2008) – Planning inspectors unlawfully carried out directed surveillance when they entered the driveway of a private property – £ 2, 500 compensation awarded www. emlawshare. co. uk