Transcript Slides for EM Lawshare Seminar

RIPA
John Riddell
Weightmans LLP
12th February 2015
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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
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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.’
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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.
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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.
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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.)
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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 23A and 23B.)
• 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
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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
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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.
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THE DECISION
• The test - whether there 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.
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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
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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 aNd the obligations of data
providers to retain data.
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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.
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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.
• S79 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.
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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.
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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.
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• 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.
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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.
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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.
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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
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