Chief Surveillance Commissioner warns on knowledge among magistrates of RIPA

In his annual report for 2013/14, Sir Christopher Rose said: “The public is not well served if, through lack of experience or training, magistrates are not equipped effectively to exercise the oversight responsibility which the legislation requires.

“I am aware, for example, of one magistrate having granted an approval for activity retrospectively, and another having signed a formal notice despite it having been erroneously completed by the applicant with details of a different case altogether.”

Describing the disparate levels of knowledge within the magistrates’ court as “disappointing”, the Commissioner suggested the issue should have been tackled by those responsible for their training.

“Most public authorities now require their Authorising Officers to have completed RIPA training before they can so act, and this is obviously good, if not essential, practice which should be no less a requirement for magistrates,” he argued.

Sir Christopher meanwhile suggested that the changes brought about for local authorities by The Protection of Freedoms Act 2012 had now had time to bed in.

He said his Surveillance Inspectors and Assistant Surveillance Commissioners had identified a downward trend in the number of applications made and authorisations granted, “which may or may not be attributable to this enactment”.

The report also revealed that a number of local authorities had decided not to engage in covert activity as a matter of policy, but the reasons for that decision varied and were not always expressed.

Sir Christopher said it would be "fair to say" that there had been a continuing steady decline in the use of directed surveillance by local councils which may, or may not, have resulted from the introduction of the need to seek a magistrate’s approval.

In one borough council there had been 47 directed surveillance authorisations between 2010 and the introduction of The Protection of Freedoms Act 2012 and none in the 16 months thereafter, the report found.

The Commissioner also suggested that for several years three had been a gradual, though in some cases very severe, diminution in the funding and resources available to public authorities. “We are often told that the cost of conducting surveillance, in terms of manpower, time and equipment, is now difficult to justify.”

The report pointed out that although the wherewithal to conduct such activity might have disappeared, the problems which it had traditionally tackled had not. “Councils have, therefore, resorted to different measures, such as a more overt response to criminality, through increased patrols by neighbourhood wardens and the like, or increased working with other bodies and the private/commercial sector to tackle anti-social activities.”

However, Sir Christopher warned that not all criminality could be successfully tackled through overt means alone. “A clear example is benefit fraud: we have seen a gradual reduction of the use of directed surveillance by locally based benefits teams in councils, as this now tends to be authorised and managed, albeit with council officers’ assistance, by the Department for Work & Pensions.”

The report said that where councils had continued to use their RIPA powers, the Commissioners’ team had sometimes identified a lack of a corporate approach to the new process.

“Some councils have established or used existing relationships with their local magistrates’ court to ensure that both parties were prepared for the impact of the new Act; some have gone so far as to provide a training input to local magistrates and their clerks, so they understand RIPA and the type of case and associated documentation which will be presented to them,” it said.

“Other councils have gone to the court with their RIPA paperwork, only to find a complete lack of awareness of the process, and this has led, in some cases, to delays. By the time the magistrate finally looks at the case, the intelligence behind it might now be unreliable, or the resources to undertake the surveillance no longer available for the desired duration.”

The Commissioner found that public authorities had adopted a range of approaches as to who should present the case to the magistrate.

Sir Christopher has always argued that this should be the ‘Authorising Officer’ – the person statutorily responsible for making judgements as to the necessity, collateral intrusion and proportionality of the proposed activity.

“However, my Inspectorate has rarely encountered this in practice – instead, the more likely officer to attend the court, by dint of their specialised training and perceived familiarity with RIPA, is a member of the legal team, the applicant, the lead investigating officer, or a member of the Trading Standards team,” the report said. “I am aware that the Home Office guidance makes no stipulation, but, as a matter of good practice, I continue to urge the attendance of the Authorising Officer.”

Elsewhere, the Commissioner acknowledged that social networks were something that public authorities could exploit for investigative purposes.

However, he added: “In cash-strapped public authorities, it might be tempting to conduct on line investigations from a desktop, as this saves time and money, and often provides far more detail about someone’s personal lifestyle, employment, associates, etc.

“But just because one can, does not mean one should. The same considerations of privacy, and especially collateral intrusion against innocent parties, must be applied regardless of the technological advances.”

He warned that – despite there being, in many cases, local and national guidance on the issue – many local authorities and government departments had still to recognise the potential for inadvertent or inappropriate use of social network sites in their investigative and enforcement role.

“Whilst many have warned their staff of the dangers of using social media from the perspective of personal security and to avoid any corporate damage, the potential need for a RIPA authorisation has not been so readily explained,” the Commissioners explained.

“I strongly advise all public authorities empowered to use RIPA to have in place a corporate policy on the use of social media in investigations. Some public authorities have also found it sensible to run an awareness campaign, with an amnesty period for declarations of any unauthorised activity or where, for example, officers have created false personae to disguise their on line activities.”

Responding to the report, campaign group Big Brother Watch said: “Whilst long overdue, the Commissioner is absolutely right to acknowledge that many public authorities around the country may well be covertly gathering intelligence from social media sites illegally.

“RIPA was created whilst Google was still in its infancy and social media sites like Facebook and Twitter did not yet exist. It would therefore be ridiculous to expect that the legislation would allow the use of the internet to proportionately investigate crimes, whilst ensuring that safeguards are in place to protect the public’s privacy.”

It added: “A far more open discussion about what data should be monitored, as well as whether the legal framework is truly fit for the digital age, is required.”