3.1 "Surveillance" includes:-
- monitoring, observing, listening to persons, watching or following their movements, listening to their conversations and other such activities or communications
- recording anything mentioned above in the course of authorised surveillance
- surveillance, by or with, the assistance of appropriate surveillance devices
3.2 What is Overt Surveillance?
Most of the surveillance carried out by the Council will be done overtly - there will be nothing secretive, clandestine or hidden about it. Surveillance will also be overt if the subject has been told it will happen (eg where a noise maker is warned that noise will be recorded if the noise continues). In these circumstances no specific authorisation will be required in RIPA; however, it is always wise to check the situation with Legal Services beforehand.
3.3 What is Covert Surveillance?
Covert surveillance is defined in RIPA as any surveillance which is carried out in a manner calculated to ensure that the persons the subject of the surveillance are unaware that it is or may be taking place. RIPA goes on to define two different 'types' of covert surveillance:
- directed surveillance
- intrusive surveillance
Intrusive surveillance is carried out in relation to anything taking place on any residential premises or in any private vehicle and involves the presence of an individual on the premises or in the vehicle, or is carried out by means of a surveillance device.
The Council has no powers to undertake intrusive surveillance operations. This form of surveillance can only be carried out by the Police and other law enforcement agencies.
3.4 What is directed surveillance?
Directed surveillance is defined in RIPA as surveillance which is covert but not intrusive and is undertaken:
- for the purposes of a specific operation or investigation;
- in such a manner that it is likely to result in the obtaining of private information about a person (whether or not they are the individual specifically identified for the purposes of the operation);
- otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation to be sought for carrying out surveillance.
3.5 For what purposes can the Council conduct directed surveillance?
The Council can use directed surveillance only for the purpose of preventing or detecting crime. Further the offence in question must attract a potential custodial sentence of at least 6 months or involve the sale of alcohol or tobacco to minors.
Notwithstanding any other provisions of this policy where an Officer is contemplating undertaking surveillance that does not fall within the RIPA purpose as detailed above, they must take advice from Legal Services before they proceed.
3.6 What falls within the definition of directed surveillance?
It is safest to assume that any operation that involves planned covert surveillance of a specific person or persons, of however short a duration, falls within the definition of directed surveillance and will, therefore, be subject to authorisation under RIPA. This will also necessitate prior judicial approval.
The consequence of not obtaining an authorisation and the necessary judicial review approval may render the surveillance action unlawful under the HRA, or any evidence obtained may be inadmissible in Court proceedings. It is imperative that Council Officers obtain all necessary approvals/authorisations, where the surveillance is likely to interfere with a person's Article 8 rights to privacy. Obtaining an authorisation will ensure that the surveillance action is carried out in accordance with the law and is subject to stringent safeguards against abuse.
Proper authorisation of surveillance should also ensure the admissibility of evidence under the common law, Police and Criminal Evidence Act 1984 (Section 78) and the HRA.
The Home Office Code on Covert Surveillance makes specific reference to the covert use of overt CCTV systems. The Code clearly indicates that such targeted surveillance activity should be subject to RIPA authorisation.
3.7 Examples not involving Directed Surveillance
Directed surveillance is conducted where it involves the observation of a person or persons with the intention of gathering private information to produce a detailed picture of a person's life, activities and associations. Private life is a broad term not susceptible to exhaustive definition. Aspects such as gender identification, name, sexual orientation and sexual life are important elements of the personal sphere protected by Article 8 of the European Convention. The Article also protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world and it may include activities of a professional or business nature.
Generally speaking the term Private life does not include the general observation which is part of an Enforcement Officer's normal work. For example observing a construction site prior to a visit, videoing scaffold erectors prior to a visit for the purpose of identifying problems, or stopping on a hill and using binoculars to identify where agricultural activities are taking place does not constitute directed surveillance.
3.8 What falls outside of directed surveillance?
Anything which constitutes an immediate response e.g. a Council Officer with regulatory responsibilities may by chance be present when an individual is potentially infringing the law and it is necessary to observe, follow, or engage in other surveillance tactics as an instant response to the situation to gather further information or evidence. Once this immediacy has passed, however, any further covert surveillance of the individual should be subject to RIPA authorisation.
If you have time to think about it, plan it and undertake targeted surveillance on a specific person or persons, you also have the time to consider RIPA requirements and use them when appropriate.
Remember, IF IN DOUBT GET IT AUTHORISED.
3.9 What is authorisation?
Authorisation is the process by which a directed surveillance operation is subject to proper consideration, recording and approval by the Officer conducting the investigation and the Officer authorised to approve it.
An authorisation ensures that all relevant factors have been thoroughly considered and checked. It is also the means by which, in the event of challenge, Council Officers can demonstrate that covert surveillance was lawfully conducted and that is was a fair and reasonable way to proceed, despite the possible intrusion of a person's privacy.
The standard authorisation forms issued by the Home Office and adapted for Council use cover all of the necessary aspects. It is important that these forms are correctly and adequately completed for all directed surveillance operations.
There is one element of the written application that is of particular importance and is an integral part of a number of the questions contained in the standard application form:
Proportionality - this is a fundamental principle embodied in the HRA.
Officers must balance the seriousness of the intrusion into the privacy of the subject of the operation (or any other person who may be affected) against the need for the activity in investigative and operational terms.
The following elements of proportionality should be considered:
- balancing the size and scope of the proposed activity against the gravity and extent of the perceived crime or offence
- explaining how and why the methods to be adopted will cause the least possible intrusion on the subject and others
- considering whether the activity is an appropriate use of the legislation and a reasonable way, having considered all reasonable alternatives, of obtaining the necessary result
- evidencing, as far as reasonably practicable, what other methods had been considered and why they were not implemented.
- Consideration that the potential criminal offence attracts a custodial sentence of 6 months or more, or involves the sale of alcohol or tobacco to minors
Why officers consider the surveillance to be proportionate in the circumstances must be adequately recorded in the application form. It is not enough to simply have a standard phrase saying that the surveillance is proportionate. The rationale for proceeding with covert surveillance needs to be written and explicit.
Officers must explain in clear terms why the directed surveillance is proportionate to what it seeks to achieve. They must explain how intrusive it might be on the subject of surveillance or on others. Further they must explain why this intrusion is outweighed by the need for surveillance in operational terms. They must address their minds to whether the evidence be obtained by any other means.
Officers should consider the following in framing responses to questions included in the application form:
- What is the nature of the suspected or alleged offence / infringement?
- What, if any, are the alternatives to covert surveillance, i.e. could the information be reasonably obtained by other means?
- If there are other options why have these been rejected in favour of covert surveillance?
- What is the level of intrusion of privacy likely to be? Minimal? Average? Significant? Interference will not be justified if the means used to achieve the aim are excessive in the circumstances of the case. Further, any proposed interference with a person or persons' private, home and family life (HRA Article 8 rights) should be carefully managed and must not be arbitrary or unfair.
- Is it possible that legally privileged, personal confidential information or confidential journalistic material could be acquired?
- Is the privacy of other persons not connected with the investigation likely to be affected? (collateral intrusion).
- What is the desired outcome?
- What is the anticipated benefit to the Council?
Proportionality in this context has nothing whatsoever to do with whether or not the possible benefits of a covert surveillance operation justify the time and money expended by the Council, although Officers will no doubt wish to take this into account.
The Authorising Officer will only grant an authority if covert surveillance is necessary in the circumstances of the particular case and only for the purpose of preventing and detecting crime.
The Authorising Officer will give consideration to alternative means of obtaining the information required e.g. by obtaining statements from witnesses (if available).
The Authorising Officer must also pay particular attention to Health and Safety issues that may be raised by any proposed surveillance activity. Under no circumstances, should an Authorising Officer approve any RIPA form unless, and until he is satisfied the health and safety of Council employees/agents are suitably addressed and/or risks minimised, so far as is possible, and proportionate to/with the surveillance being proposed. If the Authorising officer is in any doubt, he should obtain prior guidance on the same from the Chief Executive, and the Council's Health and Safety Officer and/or the Council's Legal Services team.
3.10 Judicial Approval
Once the application has been authorised by the Authorising Officer, the authorisation will require judicial approval by a Magistrate. The Shared Services Lead - Legal should be contacted to arrange the court hearing. See the Flow Chart set out in Appendix B to this policy.
3.11 Collateral Intrusion
An Authorising Officer must take into account - and give proper weight to - the risk of collateral intrusion into the privacy of persons other than those who are the direct subjects of the operational investigation, such as innocent bystanders. Unnecessary intrusion into the lives of those not directly involved in the operation will be avoided wherever possible.
Before granting an authorisation, the Authorising Officer will take into account the possibility that similar surveillance activities are being undertaken by other public authorities.
3.12 Who can authorise surveillance operations?
"Director, Head of Service, Service Manager or equivalent" is the term used for the appropriate level of authorisation within local authorities in the statutory instrument that prescribes the officers, ranks and positions for authorisation purposes (RIPA (Directed Surveillance and Covert Human Intelligence Sources) Order 2010: SI No. 521). Within the Council the following officers will be authorising officers:
- The Director of Communities
- The Director of Development and Place
- The Chief Executive
Where there is a likelihood that legally privileged, personal confidential information or confidential journalistic material will be acquired as a result of a directed covert surveillance operation, authorisation will be by the Chief Executive. Legal advice must be obtained first before proceeding with any request for such authorisation. The Council will be mindful of whether the provisions of RIPA (Extension of Authorisation Provisions: Legal Consultations) Order 2010 would apply in the particular circumstances of the request.
3.13 What is legally privileged information, personal confidential information or confidential journalistic material?
The definitions are detailed in section 9 of the Home Office Covert Surveillance and Property Interference Code of Practice.
If any guidance is required on these issues then please see the Legal Services Team.
3.14 What is the duration of authorisations?
A written authorisation approved by a Magistrate, for a directed surveillance operation will cease to have effect (unless renewed) at the end of a period of three months beginning with the day on which it took effect e.g. authorised on20 December 2021: expires 19 March 2022. However, officers should be aware that such directed surveillance must be subject to regular reviews. Except in exceptional circumstances, the review will take place 14 days after a written authorisation has been granted and 24 hours after an urgent authorisation has been granted.
Authorisation for a directed surveillance operation using a human intelligence source (which has also been approved by a Magistrate) will cease to have effect (unless renewed) at the end of a period of 12 months beginning with the day on which it took effect.
3.15 How is an operation reviewed, renewed or cancelled?
All covert operations or investigations must be effectively assessed and regularly monitored by the Officer conducting the operation and the relevant Authorising Officer. The authorisation process should be viewed as a useful management tool to help Officers to achieve this. Regular reviews of authorisations (for written authorisations reviews should take place every 14 days) should be undertaken to assess the need for surveillance to continue. Responsibility for assessing the appropriate review period rests with the Authorising Officer and this should be as frequently as considered necessary and practicable. There is clear guidance on reviews, renewals and cancellations in the Home Office Codes of Practice and Officers should refer to the appropriate sections for further details.
The standard renewal and cancellation forms issued by the Home Office adapted for Council use cover all the necessary aspects. It is important that these forms are correctly and adequately completed. It is particularly important at the review stage that renewal or cancellation of an operation is considered.
The Authorising Officer who granted or last renewed an authorisation must cancel it, if he is satisfied that the directed surveillance no longer meets the criteria upon which it was originally authorised.
3.16 Criminal prosecution
Once a covert operation results in an individual being under suspicion of having committed a criminal offence, he must be informed of this as promptly as is reasonably practicable if the relevant service group is pursuing the offences internally. In all other cases the police will be informed. This is in order to ensure their right to a fair trial or hearing within a reasonable time in accordance with the Human Rights Act. In a situation where it is considered that a matter gives rise to a potential criminal prosecution, any interview with the suspect must be 'under caution' and conducted by a suitably trained officer. If appropriate, the police will be involved immediately to ensure that evidential procedures and the requirements are observed. Authorising Officers will note any recorded material handed over to the police.