RIPA policy

APPENDIX A

AUTHORISATION PROCEDURE

DIRECTED SURVEILLANCE

1. Must be authorised in accordance with paragraph 3.12 of this policy.
2. The Authorising Officer must firstly, satisfy themselves that the authorisation is necessary for the purpose of preventing and detecting crime.  This is the only ground the Council can rely on.
3. The Authorising Officer should then satisfy themselves that the surveillance is proportionate to what it seeks to achieve.  In many instances, evidence may be obtainable by other routes, other than directed surveillance, e.g. witness statements, official records, the DVLA, etc.
4. The Authorising Officer has to be satisfied that the specific targeted criminal offence carries a maximum custodial sentence of 6 months or more.
5. As part of that judgement, the Authorising Officer should consider whether there could be any collateral intrusion on, or interference with, the privacy of person(s), other than the subject of the surveillance.  This is particularly relevant where the premises being observed is used by other persons.  This must be taken into account by the Authorising Officer when considering whether the need for the surveillance is proportionate to the problem.
6. As a matter of policy, no directed surveillance should be carried out by Council staff which may intrude upon circumstances covered by the Seal of the Confession, which refers to the spiritual counselling between a Minister and a Member of their faith.
7. A form has been devised for use when authorisation for directed surveillance is being sought, and granted.  The form should be completed by the Officer wishing to carry out the directed surveillance and the Authorising Officer, together with approval from a Magistrate, before any directed surveillance takes place. Copies of this form (and all other forms relating to the use of directed surveillance) may be obtained from the Shared Services Lead - Legal.
8. n urgent cases only, authorisation may be given orally, however, please note that judicial approval will be required, prior to any directed surveillance. The form must be completed as soon as possible.  In such cases, the Authorising Officer will also need to make a written statement to show that they have expressly authorised the surveillance, and why it was necessary to give oral approval in the first instance.
9. Directed surveillance might be employed by other agencies with which the Council carries out joint investigations, for example the Police or the Environment Agency.  In those instances, care should be taken to determine whether there will be directed surveillance, who by, and who will be authorising its use.  It is normally for the tasking agency to obtain or provide the authorisation.  If the Council decides that directed surveillance is necessary, then it should inform those in the other agencies involved in the joint investigation.
10. The authorisation for directed surveillance, and any associated papers should be retained on the Service file for a period of at least 3 years.  A copy of the authorisation must be forwarded to the Shared Services Lead - Legal who will arrange for the information to be held centrally and recorded on a register.
11. The Shared Services Lead - Legal will on request, make the authorisations available for inspection, by the Office of Surveillance Commissioners (OSC) and to the investigatory Powers Tribunal.

12. Any material produced as a result of directed surveillance must be retained for only as long as it is necessary.  It should be disposed of in accordance with the Criminal Procedures and Investigations Act 1996.

13. Authorising Officers must ensure compliance with the Data Protection Act 2018 and General Data Protection Regulations (GDPR) principles.

CONFIDENTIAL MATERIAL

'Confidential material' is described by RIPA as being:

a.    matters subject to legal privilege;

b.    confidential personal information; or

c.    confidential journalistic material.

Where there is a likelihood that confidential material will be acquired as a result of a directed covert surveillance operation, authorisation will be by the Chief Executive. Legal advice shall be obtained first before proceeding with any request for such authorisation.

Acquiring confidential material concerning the object of the surveillance is likely to be rare.  Confidential material is more likely to come into the possession of those carrying out other types of intrusive surveillance by means of surveillance devices, such as bugs placed in vehicles and residential premises.

COVERT HUMAN INTELLIGENCE SOURCE (CHIS)

1. Must be authorised by an Officer specified in paragraph 3.12 of this policy as 'Authorising Officer.'
2. The Authorising Officer must firstly, satisfy themselves that the authorisation is necessary for the purpose of preventing or detecting crime.  This is the only ground the Council can rely on.
3. The Authorising Officer should satisfy themselves that the use of CHIS is proportionate to what it seeks to achieve and that it is necessary.  In many instances, evidence may be obtainable by other routes, other than the use of a CHIS, e.g. witness statements.
4. As part of that judgement, the Authorising Officer should consider whether there could be any collateral intrusion on, or interference with, the privacy of person(s), other than the subject of the covert surveillance.
5. A form has been devised for use when authorisation for a CHIS is being sought, and granted.  The form should be completed by the Officer wishing to carry out covert surveillance and the Authorising Officer should approve, together with judicial approval by a Magistrate before any surveillance takes place. A copy of this form (and all other forms relevant to the authorisation of a CHIS) may be obtained from the Shared Services Lead - Legal.
6. CHIS might be employed by other agencies with which the Council carries out joint investigations, for example the Police or the Environment Agency.  In those instances, care should be taken to determine whether there will be covert surveillance, who by, and who will be authorising its use.  It is normally for the tasking agency to obtain or provide the authorisation.  If the Council decides that a CHIS is necessary, then it should inform those in the other agencies involved in the Joint investigation.
7. The Authorising Officer must be satisfied that the appropriate arrangements are in place for the management of the CHIS.  This should include a risk assessment for health and safety.
8. The Authorising Officer should consider the diverse impact on community confidence that may result from the information obtained.
9. The authorisation for a CHIS, and any associated papers should be retained on the Departmental file for a period of at least 3 years.  A copy of the authorisation must be forwarded to the Shared Services Lead - Legal who will arrange for the information to be held centrally and recorded on a register.
10. The Shared Services Lead - Legal will on request, make the authorisations available for inspection, by the Office of Investigatory Powers Commissioners (IPC) and to the investigatory Powers Tribunal.
11. Any material produced as a result of a CHIS must be retained for only as long as it is necessary.
12. Authorising Officers must ensure compliance with the Date Protection Act 2018 principles.

REVIEW

Regular reviews will take place once authorisation has been granted.  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.  Records of reviews will be maintained in the Departmental file and centrally, by the Shared Services Lead - Legal.  Records will be retained in both locations for a period of 3 years.

All necessary forms relating to reviews may be obtained via the Shared Services Lead - Legal.
 

RENEWALS

It will be rare that renewals of authorisations will be required in order to continue surveillance.  However, if they are required, applications for renewals of authorisation will be made in writing using a standard renewal proforma.

All necessary forms relating to renewals may be obtained via the Shared Services Lead - Legal.

If the Authorising Officer considers it necessary for the authorisation to continue, then it may be renewed as follows:

•  For an ordinary authorisation, renewed for a period of up to three months.
• For an urgent oral authorisation, renewed for a period of up to 72 hours.

Please note that renewals will also require judicial approval by a Magistrate and therefore a further application to court will be necessary.

All applications for renewals will contain the following information:

•  Renewal numbers and dates of any previous renewals;
• Details ofany significant changes to the information as listed in the original authorisation as it applies at the time of the renewal;
• Details of the reasons why it is necessary to continue with the directed surveillance;
• Details as to why the directed surveillance is still proportionate to what it seeks to achieve;
• An Indication of the content and value to the investigation or operation of the information so far obtained by the directed surveillance;
• Details of the results of the regular reviews of the investigation or operation.

Records of renewals will be maintained in the service group file and centrally, by the Shared Services Lead - Legal.  Records will be retained in both locations for a period of 3 years.

CANCELLATION

1. Authority to carry out covert surveillance is valid for a period of 3 months, from the date it was granted.  However, there is a duty incumbent upon both the Authorising Officer and the Officer carrying out the surveillance, to continually review its necessity and proportionality.  The operation must be cancelled as soon as it is no longer appropriate, irrespective of the time outstanding.  The cancellation must be recorded in writing on the appropriate authorisation form and retained in the service group file and centrally, by the Shared Services Lead - Legal.
2. As soon as the decision is made to cancel the authorisation, an instruction will be given to those carrying out the investigation to stop all surveillance.
3. Due to the nature of the Council's likely use of directed surveillance, permission to renew / extend directed surveillance will only be granted on an exceptional basis.  The request for renewal / extension must be accompanied by detailed information about the investigation, and reasons why directed surveillance must be continued.  The application and any authorisation of a renewal / extension must be retained on the service group file and copied to the Shared Services Lead.  Records will be retained in both locations for a period of 3 years.  No form is provided for renewing / extending approvals.  The circumstances will be so unique, that it must be argued on a case by case basis.

MATERIAL OBTAINED

Material obtained as a result of an investigation involving covert surveillance will be afforded special protection in relation to handling and storage.

Confidential material will not be retained or copied unless it is necessary for a specific purpose.

All material obtained as a result of having undertaken a directed covert surveillance will be recorded and logged in the investigating officer's notebook in accordance with usual procedures for logging of evidence.

Confidential material will only be disseminated outside the Council where this has been expressly authorised by the Authorising Officer, having taken the necessary legal advice.

Reasonable steps will be taken to ensure that confidential information is securely stored and cannot fall into the wrong hands.

All confidential information will be destroyed as soon as it is no longer necessary to retain it for the specified purpose.  Regular review of material obtained as a result of covert surveillance will ensure that material is destroyed when its retention can no longer be justified.

TRAINING

All investigators and Authorising Officers are adequately trained on the provisions of RIPA to ensure that the requirements of the law are complied with.  Regular up date training is provided, to ensure that all personnel involved with the operation of the law are aware of its requirements.