Practical Law

PLC Public Sector reports:

There has been considerable publicity surrounding local government’s use of the surveillance powers contained in the Regulation of Investigatory Powers Act 2000 (RIPA), see our March 2009 opinion “To snoop or not to snoop”.

Although the coalition government has indicated that it proposes to carry out a review of RIPA, with a view to limiting local authorities’ use of the Act to stopping serious crime and imposing a requirement on local authorities to make an application to a magistrate’s court to use RIPA, the outcome of that review will not be announced before Autumn 2010 and will then require the appropriate legislation to be passed. The practicality, and cost implications, of local authorities having to make an application to a magistrate’s court each time they wish to conduct covert surveillance, in addition to meeting the test of “serious crime” (assuming the definition in RIPA is retained), will be a blog discussion for another day once the outcome of the review is published. 

However pending that review, and following last week’s decision of the Investigatory Powers Tribunal that Poole Borough Council’s use of covert surveillance  to investigate a potentially fraudulent school application was not a proper purpose in the sense required by RIPA, it would be sensible for local authorities to review their existing policies and procedures for the use and conduct of directed surveillance under RIPA.  In particular, local authorities should:

• Ensure that their formulated policy and procedures on covert surveillance explains the main provisions of the legislation and have regard to the Codes of Practice issued by the Secretary of State under section 71 of RIPA. 
• Check that key personnel, such as the Chief Executive, Directors and Heads of Services, have an understanding of the basic requirements of RIPA and particularly how it applies to the work of individual departments, such as trading standards, housing benefit fraud, internal audit and environmental health.  Following the Poole Borough Council decision, local authorities should reconsider the use of surveillance as a method of verifying addresses used for the purposes of school admissions.
• Maintain a corporate approach towards RIPA by ensuring that a senior officer of the local authority has responsibility for overseeing all RIPA issues including:
  • keeping a central record of authorisations;
  • training and updating nominated authorising officers to make sure that they understand the test they should apply to covert surveillance, which is that it is necessary for the purpose of preventing or detecting crime and is proportionate;
  • administration;
  • quality control; and
  • policy.
• Check that nominated authorising officers:
  • when authorising directed surveillance ask themselves the important question “for what purpose is the authorisation sought?”;
  • give proper consideration to proportionality, in particular  whether the impact on the privacy of the target is disproportionate to the seriousness of the offence;
  • satisfy themselves that the possible crime or offence identified is one that makes directed surveillance necessary for the purpose of preventing or detecting crime; 
  • conduct regular reviews of authorised applications; and 
  • cancel authorisations as soon as they believe the activity is no longer necessary or appropriate.
• Consider whether the particular circumstances justify a more open method of investigation.  For example, in the Poole case, there was no evidence that the Council, before making the application authorising directed surveillance:
  • sought to interview the individuals who were the subject of the surveillance; 
  • visited either of the properties they owned to see if they were living there; or
  • made any other local enquiries to discover whether they were ordinarily resident at the relevant date.

Last week’s decision is a timely reminder for local authorities that they must use the RIPA powers proportionately and have a reasonable belief that the proposed surveillance is proportionate.  Hopefully, conducting a review of its RIPA policy on the basis outlined above will ensure that, before the outcome of the government’s review is known, no other local authority will find its use of RIPA powers challenged at an open hearing of the Investigatory Powers Tribunal.