RIPA investigated

A case where a borough council used RIPA to conduct surveillance on a family amid concerns that the mother had lied on a school admissions form received national media coverage. Anya Proops looks at the tribunal ruling and spells out the key lessons for local authorities to learn.

There is little doubt that in recent years there has been a tendency on the part of some local authorities to be somewhat overzealous when it comes to using the Regulation of Investigatory Powers Act 2000 (RIPA) in order to conduct directed surveillance of local residents. Notorious incidents include the surreptitious planting of a microchip within a resident’s bin, purportedly in order to show that the resident was putting the bin out on the wrong days, and the use of secret cameras to identify unlawful dog fouling.

Concerns have been widely expressed not only in the media but also within Parliament that such snooping activities do not constitute a lawful use of the powers afforded under RIPA and that they culminate in wholly unjustified interferences with individuals’ Article 8 right to privacy. More recently, the question of whether local authorities may be misusing their powers under RIPA has been brought into sharp focus in the case of Paton & Ors v Poole BC (Case Nos. IPT/09/01/C-IPT/09/05/C).

In Poole, Ms Paton, her partner and their three children had been subject to three weeks of covert monitoring by Poole Borough Council. Poole had conducted the surveillance because it had concerns that, in order to secure a place for her child at a particular school, Ms Paton had lied in a school admissions application form by stating that the family lived at an address within the catchment area when in fact the family was ordinarily resident at another address outside that area.

Having discovered that they had been subject to the covert monitoring, all five members of the Paton family went on to mount a legal challenge against the council in the Investigatory Powers Tribunal (IPT). The family claimed that the covert monitoring was unlawful under Part II of RIPA. On 29 July 2010, the IPT handed down a judgment in which it comprehensively upheld the family’s complaint against Poole.

Findings of fact made by the IPT

There was evidence of a growing problem of fraudulent or misleading admissions applications by parents. If not addressed, that problem could potentially undermine the fairness and integrity of the schools admissions policy.

At the time the application form was submitted by Ms Paton (11 January 2008), Ms Paton and her husband owned two properties, one within the catchment area (Property 1) and one outside (Property 2). As at early February 2008, there had been a factual basis for Poole’s concern about the accuracy of the information contained in the form submitted by Ms Paton. This justified further investigation of the matter by the council. There was also a degree of urgency when it came to discovering whether Ms Paton had lied on the form as offer letters were due to be sent out on 14 March 2008.

Prior to undertaking the covert surveillance, the council had not endeavoured to interview Ms Paton or made other inquiries within the locality in order to discover whether the family were ordinarily resident at Property 1. The surveillance itself entailed an education officer driving past Property 1 and Property 2 on a daily basis to ascertain whether the family’s car was present or whether the properties were being used. On some occasions, the officer would park his car to see who was getting in or out of the family car. On one occasion, Ms Paton and her children were followed as they drove to a school. The officer’s report concluded that the family’s home address was Property 2.

After the surveillance concluded, Ms Paton and her partner was invited to attend a meeting with the council to discuss their residential arrangements. At this meeting, they were told about the surveillance and given a copy of the surveillance report. Thereafter, the council concluded that, at the time the application was submitted, the family had in fact been ordinarily resident in Property 1.

IPT’s conclusions on the complaint

It was not in dispute that the council had engaged in covert “directed surveillance” for the purposes of s. 26(2) RIPA. The question of whether the surveillance had been lawfully authorised turned on whether the relevant authorising officer believed: (a) that the authorisation was “necessary...for the purpose of preventing or detecting crime or of preventing disorder” and (b) the authorised surveillance was “proportionate to what is sought to be achieved by carrying it out” (ss. 28(2) and (3)(b) RIPA).

• No proper purpose: The council had not established that the surveillance was for the purposes of preventing or detecting crime. This was particularly because: the aim of the surveillance was ultimately to prevent Ms Paton’s child taking up a place at the school if he was not ordinarily resident in Property 1, it was not to support a criminal prosecution; there was in any event no question of the children, who had also subject to surveillance, themselves being suspected of any criminal wrongdoing; as for Ms Paton, the council had not established that, even if the information she provided was false, this would amount to a criminal offence, nor could the council have had a reasonable belief that an offence had been committed under the Fraud Act 2006.
• Necessity: The council had also not established that the surveillance was ‘necessary’. This was the case particularly in respect of the children, who were subjected to surveillance despite not having themselves been suspected of any wrongdoing. The council also erred by failing to give consideration to other forms of inquiry which would not have entailed surveillance.
• Proportionality: The surveillance was not proportionate particularly given that the surveillance entailed an interference with the Article 8 rights of three children who were not themselves suspected of any wrongdoing.

Importantly, in February 2010, Parliament enacted legislation which is designed to place greater constraints on local authorities who are inclined to use RIPA to engage in surveillance activities. The legislation, which came into force on 6 April 2010, provides that it is only particular very senior officers within the local authority who may authorise directed surveillance (see the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010).

The legislation also gives legal effect to a new much more rigorous code of practice, namely the Covert Surveillance and Property Interference Revised Code of Practice. The new code contains much more detailed guidance on how local authorities are to apply RIPA in practice, including guidance on how local authorities should determine whether directed surveillance is a proportionate measure (see paragraph 3.6).

It is uncertain whether Poole would ever have contemplated authorising covert surveillance of the Paton family had this new more rigorous legislative regime been in place in 2008. However, there are in any event four important lessons to be learnt from the Poole case.

First, local authorities should be very clear and specific as to the particular criminal conduct or disorder which they consider necessitates the use of directed surveillance.

Second, they should ensure that the authorisation is given for the specific purpose of detecting or preventing that wrongful conduct, rather than in order to achieve some ulterior objective.

Third, local authorities should generally be disinclined to authorise surveillance operations which will result in persons not suspected of any wrongdoing being subject to the surveillance.

Fourth, they should generally regard surveillance operations very much as a last resort rather than a first port of call.

Anya Proops is a barrister at 11KBW (www.11kbw.com).