Restraining RIPA

The use of RIPA powers by local authorities could be curtailed by proposals in the Home Office’s review and the requirement in particular to get a magistrate’s approval, writes Ibrahim Hasan.

The days of local authorities of local authorities being able to use surveillance powers to tackle dog fouling and littering offences will soon be over. On 26 January 2011 the Home Office published its long awaited review of counter-terrorism and security powers.

Amongst all the headlines and controversy about control orders on suspected terrorists, it is easy to miss the proposed changes to local authorities' powers to carry out surveillance under the Regulation of Investigatory Powers Act 2000 (RIPA). These changes will have a big impact on the work of in-house lawyers and investigating officers.

Responding to media stories of councils misusing “anti terror laws”, both coalition parties promised (in their election manifestos) to overhaul Part 2 of RIPA, which regulates local authorities, amongst others, when conducting covert surveillance on citizens. They argued that such surveillance was often used to investigate minor offences and in a disproportionate manner.

On 13 July 2010, the Home Secretary Theresa May announced a review "focusing on which security powers could be scaled back in order to restore the balance of civil liberties".  The review, overseen by Lord Macdonald QC (a Liberal Democrat peer and former Director of Public Prosecutions), covered six key areas including “the use of [RIPA] by local authorities, and access to communications data in general.”

This was not welcome news for local authorities which were still trying to implement the changes to RIPA after the last review conducted by the Labour government. That led to two new RIPA codes of practice and a new statutory instrument, which came into force on 6 April 2010.

The recommended changes, which have been endorsed by Lord Macdonald, are as follows:

Magistrate’s approval

When local authorities wish to conduct Directed Surveillance, deploy a Covert Human Intelligence Source (CHIS) (under Part 2 of RIPA) or acquire communications data (under Part 1 Chapter 2) they must seek approval from a Magistrate. This should be in addition to the authorisation needed presently from a local authority senior manager (at least Director level) and the more general oversight by elected councillors as set out in the new codes.

Is it really practical for local authorities to make an application to a Magistrate each time they wish to follow a rogue trader or do a mobile phone subscriber check? We are still waiting for the detail as to precisely how this new approval process will work but already concerns have been expressed about the practicalities and the resource implications.

Councillor Mehboob Khan, chair of the Local Government Association’s Safer and Stronger Communities Board, has demanded that assurances are given that the process will be swift and that investigations will not be hindered. “In urgent cases, immediate access to a judge must be granted and all applications must be heard in private to prevent ongoing operations from being undermined,” he said.

Serious offence test

The Home Office review also recommends that where local authorities wish to use RIPA to authorise Directed Surveillance, this should be confined to cases where the offence under investigation carries a custodial sentence of six months or more.

Directed Surveillance has been the subject of substantial debate and controversy. It is often conducted by local authorities to, amongst other things, investigate a benefit fraud or to collect evidence of anti-social behaviour. Typical methods include covertly following people, covertly taking photographs of them and using hidden cameras to record their movements. Introducing a six months’ imprisonment test will ensure that such techniques are no longer an option when local authorities are investigating “minor offences” such as dog fouling and littering. Critics have said that these offences, whilst not carrying custodial sentences, are the main subjects of complaints by citizens and failure to tackle them leads to serious health consequences.

There is an exception to this general rule though. The review recommends that because of the importance of Directed Surveillance in corroborating investigations into underage sales of alcohol and tobacco, the government should not seek to apply the threshold in these cases. This concession is a direct result of lobbying by the Local Government Association and will be welcome news to trading standards officers.

The Review also recommends that the six-month threshold should not be applied to the two other surveillance techniques (Communications Data and CHIS) because of their more limited use and importance in specific types of investigation which do not attract a custodial sentence.

Communications data

The ability of all public bodies, not just local authorities, to access communications data under Part 1 Chapter 2 of RIPA also came under scrutiny in the review. Often these powers are used by, amongst others, benefit fraud investigators and trading standards officers to carry out mobile phone subscriber checks and to request itemised call records from communications service providers. Again these powers have often been misunderstood by the media and political parties, who feel they are yet another example of “Town Hall Snooping Laws.”

The review recommends that the process set out in Part 1 Chapter 2 of RIPA should be the only mechanism through which communications data is acquired by all public bodies. In effect all other powers should be repealed. This means that local authorities will no longer be able to use other powers to require access to communications data, e.g. under trading standards and benefit fraud legislation.

The timetable

According to the speech made by Theresa May in Parliament announcing the outcome of the review, there will be a revised RIPA “in the coming weeks”. The timetable is yet to be announced but there are indications that the changes to RIPA will be made via the Freedom Bill which is due to be published sometime in February.

Conclusion

Many local authorities will feel that the changes to RIPA are more about the Coalition Government wanting to be seen to take a tough stance on civil liberties rather than well-placed concern about the misuse of RIPA powers. Most authorities only use the RIPA powers in a handful of cases each year when there is no other viable means of investigating offences. For example Kirklees Surveillance used Directed Surveillance four times in 2010 to investigate problems of anti-social behaviour and noise nuisance. The need to seek a magistrate’s approval in future may mean that the powers are used even less frequently.

Ibrahim Hasan is a solicitor and director of Act Now Training (www.actnow.org.uk).