Mind the (surveillance) gap
Will local authorities continue to be able to do 'non-RIPA surveillance'? Ibrahim Hasan considers its lawfulness.
Before the 2010 election, both coalition parties made a big thing about “rolling back the Surveillance State.” They announced in the Coalition Agreement: “We will 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.”
The first part of this commitment has been enacted via sections 37 and 38 of the Protection of Freedoms Act 2012. This amends the Regulation of Investigatory Powers Act 2000 (RIPA) so as to require local authorities to obtain the approval of a Magistrate for the use of any one of the three covert investigatory techniques available to them under RIPA; namely Directed Surveillance, the deployment of a Covert Human Intelligence Source (CHIS) and accessing communications data. (Read our blog post for more on this requirement, which comes into force on 1 November).
The second part of the Coalition’s commitment also comes into force on the same day in the form of The Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) (Amendment) Order 2012, SI 2012/1500 (“the 2012 Order”). This amends the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010, SI 2010/521 (“the 2010 Order”).
From 1 November 2012, local authority Authorising Officers may not authorise Directed Surveillance unless it is for the purpose of preventing or detecting a criminal offence and it meets the condition set out in New Article 7A(3)(a) or (b) of the 2010 Order. Those conditions are that the criminal offence which is sought to be prevented or detected is punishable, whether on summary conviction or on indictment, by a maximum term of at least 6 months of imprisonment, or would constitute an offence under sections 146, 147 or 147A of the Licensing Act 2003 or section 7 of the Children and Young Persons Act 1933 (offences involving sale of tobacco and alcohol to underage children).
The Government’s aim in passing the 2012 Order is explained in paragraph 7.2 of the explanatory memorandum: “The additional restriction that is imposed through this statutory instrument on authorisations of directed surveillance by local authorities is imposed in response to public concern that some local authorities have used directed surveillance in trivial cases such as littering, dog control and school admission. This statutory instrument discharges a Government commitment to prevent local authority use of directed surveillance under RIPA unless required for the purposes of preventing or detecting the more serious kinds of criminal offences which local authorities investigate.”
Whilst the 2012 Order will certainly restrict councils authorising Directed Surveillance under RIPA, can it completely stop them doing covert surveillance when investigating “minor offences”? I do not think so.
RIPA is there to ensure that certain types of covert surveillance undertaken by public authorities is done in such a way as is human rights compliant. This is done through a system of (until now) internal authorisation from a senior officer. RIPA is permissive legislation. Authorisation under RIPA affords a public authority a defence under Section 27 i.e. the activity is lawful for all purposes. However, failure to obtain an authorisation does not make covert surveillance unlawful. Section 80 of RIPA states:
“Nothing in any of the provisions of this Act by virtue of which conduct of any description is or may be authorised by any warrant, authorisation or notice, or by virtue of which information may be obtained in any manner, shall be construed—
(a) as making it unlawful to engage in any conduct of that description which is not otherwise unlawful under this Act and would not be unlawful apart from this Act;
(b) as otherwise requiring—
(i) the issue, grant or giving of such a warrant, authorisation or notice, or
(ii) the taking of any step for or towards obtaining the authority of such a warrant, authorisation or notice,
before any such conduct of that description is engaged in; or
(c) as prejudicing any power to obtain information by any means not involving conduct that may be authorised under this Act.”
This point was explained more fully by the Investigatory Powers Tribunal in the case of C v The Police (Case No: IPT/03/32/H 14th November 2006): “Although RIPA provides a framework for obtaining internal authorisations of directed surveillance (and other forms of surveillance), there is no general prohibition in RIPA against conducting directed surveillance without RIPA authorisation. RIPA does not require prior authorisation to be obtained by a public authority in order to carry out surveillance. Lack of authorisation under RIPA does not necessarily mean that the carrying out of directed surveillance is unlawful.”
In making the 2012 Order, the Government has forgotten to do anything about section 80 of RIPA. They should have repealed or amended it in some way to achieve their aim. Section 80 means that the changes in the 2012 Order will not make surveillance for dog fouling and littering unlawful. All it will mean is that in such cases surveillance will not have the protection of RIPA (the defence in section 27). Local authorities will still be able use covert surveillance for such purposes as long as it is necessary and proportionate in accordance with Article 8 of the European Convention on Human Rights (right to privacy).
This point is made by the Chief Surveillance Commissioner in last year’s annual report (2010/2011): “The higher threshold in the proposed legislation will reduce the number of cases in which local authorities have the protection of RIPA when conducting covert surveillance; it will not prevent the use of those tactics in cases where the threshold is not reached but where it may be necessary and proportionate to obtain evidence covertly and there will be no RIPA audit trail. Part I of RIPA makes unauthorised interception unlawful. In contrast, Part II makes authorised surveillance lawful but does not make unauthorised surveillance unlawful.”
In his latest annual report (2011/2012) he again acknowledges (at paragraph 5.22) that there is a gap in the law which allows public authorities to undertake covert surveillance (as long as it is human rights compliant) even though it may not be authorisable under RIPA: “I occasionally encourage the use of similar authorisation mechanisms for activity which cannot be protected by the Acts (for example where covert techniques are used to identify a missing person when no crime is suspected). In these circumstances statutory definitions are met but none of the grounds specified in RIPA section 28(3) or RIP(S)A section 6(3), yet the human rights of the subject of surveillance must be considered. The authorisation process provides a useful audit of decisions and actions.”
So when the 2012 Order comes into force, we will have a void up to the six-month threshold where Directed Surveillance will not be authorisable under RIPA but may still be desired to be undertaken by investigating officers. What to do? From the above it seems that surveillance can be done as long as it is necessary and proportionate and a proper paper audit trail exists. It may be a good idea to complete a “Non-RIPA authorisation form.” (We have one in our RIPA Forms Guidance Document).
Will local authorities decide to do “Non-RIPA Surveillance”? Many of the delegates on our training courses have said that they will. This does go against the will of the Government and the purpose behind the changes, but it is lawful.
So the question is – “No six month threshold but a need to do surveillance – Should you?” I would welcome colleagues’ thoughts.
Ibrahim Hasan is a solicitor and director of Act Now Training.