Legal In this feature covert surveillance judicial authorisation recent developments Covering your back Covert enforcement techniques are still making the headlines for all the wrong reasons. Bryan Lewin and Cameron Crowe examine how officers can keep using these methods while staying within the law T rading standards forced to scale back on undercover spotchecks this December 2014 newspaper headline suggests that local authorities have reduced their already minimal use of covert enforcement techniques, following legislative restrictions in 2012. As the words also indicate, activities by local authorities under the Regulation of Investigatory Powers Act 2000 (RIPA) continue to elicit comments which are in the words of the chief surveillance ofcer inaccurate, emotive and grossly misleading. But, are the continuing reductions in the use of covert surveillance justied, and what are the consequences for those who continue to employ these tactics? You may recall that in May 2010 the coalition government pledged to ban the use of powers in the Regulation of Investigatory Powers Act (RIPA) by councils, unless they are signed off by a magistrate and required for stopping serious crime. This pledge entered the statutes through the Protection of Freedoms Act 2012 and secondary legislation, and came into effect on 31 October 2012. In summary, these provisions mean that judicial approval is required for the three covert enforcement techniques available to local authorities under RIPA. Ostensibly, RIPA is now conned to authorising directed surveillance in cases where the offence carries a maximum custodial sentence of six months, with the exception of those relating to underage sales of alcohol and tobacco (but see comments on civil applications). The Chief Surveillance Commissioner has since identied a continuing steady decline in the use of directed surveillance by local councils, which has probably resulted from the introduction of the need to obtain judicial approval. TAP TO NAVIGATE PAGES 1 2 3 4 5 6 Credits Published You might also like Bryan Lewin MBE is a former head of Tuesday 27 January, 2015 New FIRs in a nutshell January 2015 Northamptonshire Trading Standards and chairman of TSI. Cameron Crowe is a barrister at 36 Bedford Row Chambers. To share this page, click on in the toolbar Images: vchal / Shutterstock No obligation The rst important point to make is that there is no obligation to seek a RIPA authorisation or warrant even where one is available (see s80 RIPA). Failure to do so could lead to a civil action against a public authority for acting in a way that is incompatible with a persons human rights (s6 Human Rights Act 1998). A court may also refuse to allow the admission of evidence that has been obtained as a result of unauthorised conduct, but the indications are that they will only do so in cases where there is evidence of bad faith see, for example, R v Button and Tannahill [2005] EWCA Crim 516 and, albeit a non-RIPA case, R v King and others [2012] EWCA Crim 805. Unauthorised surveillance does not lead to a criminal offence being committed. Secondly as emphasised in the Chief Surveillance Commissioners 2012-2013 report and the decision of the Investigatory Powers Tribunal in BA v Chief Constable of Cleveland Police (IPT/11/129/CH; IPT/11/133/ CH and IPT/12/72/CH) unauthorised surveillance is not prohibited, provided: the public authority deems it necessary and proportionate; the authority maintains a veriable audit similar to the process and documentation for RIPA; and where the authority makes its records available for later scrutiny. It is not the Chief Surveillance Commissioners role or, indeed, the purpose of this article to encourage use of unauthorised covert surveillance by local authorities, but there may be occasions where the protection of RIPA cannot be sought, and when it may be considered necessary and proportionate to do so. Civil cases The revised Surveillance Code states: A local authority may not authorise the use of directed surveillance under RIPA to investigate disorder that does not involve criminal offences. However, the grounds for which a local authority RIPA authorisation can be given preventing or detecting crime or of preventing disorder encompass, by denition, the use of investigatory powers for civil cases (for example, to apply for an order under the Anti-social Behaviour, Crime and Policing Act 2014). The vast majority of RIPA applications will continue to be in connection with criminal cases, and the procedure governing such applications is set out in Part 6 of the Criminal Procedure Rules 2014. However, since it is possible for a local authority to pursue a civil route to deal with matters under investigation, separate rules were needed hence the Magistrates Courts (Regulation of Investigatory Powers) Rules 2012. RIPA codes of practice Two revised codes eventually came into force on 10 December 2014 see the Regulation of Investigatory Powers (Covert Surveillance and Property Interference: Code of Practice) Order 2014 and the Regulation of Investigatory Powers (Covert Human intelligence Sources: Code of Practice) Order 2014 although, following a Home Ofce consultation, draft codes had been laid before parliament on 22 July 2014. The codes include reference to the requirements for local authorities to obtain judicial approval for their use of RIPA in particular, the authoritys central record should now contain details of attendances at the magistrates court to include the date of attendances at court, the determining magistrate, the decision of the court and the time and date of that decision, and a copy of the order approving or otherwise the grant or renewal of an authorisation from a Justice of the Peace. Other amendments include: G Making it clearer that an investigation of sustained loud noise is unlikely to have privacy implications requiring a RIPA authorisation G Explaining that any RIPA activities conducted by an individual, or a non-governmental organisation acting under direction of a public authority, should be considered for authorisation G Clarication that a recording, whether overt or covert, of an interview with a member of the public where it is made clear that the interview is entirely voluntary and that the interviewer is a member of a public authority is not likely to be regarded as surveillance (see Re: a complaint of surveillance (Case No: IPT/ A1/2013)) Both codes include an almost identical paragraph on covert online activity which, along with the views expressed in the Chief Surveillance Ofcers 2013-2014 report concerning the repeat viewing of individual open source sites for the purpose of intelligence gathering and data collation emphasise that a RIPA authorisation should be considered for such activity. While the codes no longer explicitly state that elected members should not be involved in decision-making on specic RIPA authorisations, this is implicit from the codes stating that responsibility for authorising the conduct rests solely with the authorising ofcer and requires the personal authority of the authorising ofcer. CCTV The regulation of CCTV and other surveillance camera technology is now governed by the Protection of Freedoms Act 2012. The act created a code of practice, which applies to the use of surveillance camera systems by local authorities and other public bodies that operate in public places in England and Wales, and a surveillance camera commissioner. The Information Commissioners Ofce updated its previous data protection code of practice for surveillance cameras and personal information in October 2014 it takes account of developments such as digital recording technology, portable technology, drone cameras and automatic number plate recognition systems, as well as body-worn cameras used by organisations such as the police. Unsurprisingly, following a consultation on local authority parking, the government has announced its intention to ban the use of CCTV cameras to enforce action against parking contraventions. Future developments? Criticism of RIPAs terminology is not difcult to nd for example, the Interim Report of the Home Affairs Committee on Undercover Policing, published in February 2013, stated: We believe that there is a compelling case for a fundamental review of the legislative framework governing undercover policing, including the Regulation of Investigatory Powers Act 2000. Further, the Investigatory Powers Tribunal has also commented that [it is] easy to see how different interpretations in the ofcial publications could be reached. So, it is perhaps gratifying to learn that an updated version of the Ofce of Surveillance Commissioners 2011 guidance to public authorities will be published shortly, and that the Prime Minister has pledged to hold a full review of the Regulation of Investigatory Powers Act, to make recommendations for how it could be reformed and updated. This commitment has been given statutory backing through s7 of the Data Retention and Investigatory Powers Act 2014, whereby the independent reviewer of terrorism legislation must review the operation and regulation of investigatory powers. Specically, he must consider the effectiveness of existing legislation including its proportionality and the case for amending it or creating new legislation. This review, as far as it is reasonably practicable, must be completed before 1 May 2015. Depending on the outcome of events on 7 May 2015, more changes may be introduced. The Conservative Partys proposals for changing the human rights law include a new British Bill of Rights and Responsibilities (with a repeal of Labours Human Rights Act). The Home Secretary has also said that she believes the measures contained within the 2012 Draft Communications Data Bill are necessary and so does the Prime Minister but there is no coalition consensus for those proposals and we will have to return to them at the General Election. The Bill, which contained a new regime for the obtaining of communications data, was blocked by the Liberal Democrats.