Document Location - Legal Services/Legal/RIPA/Reg of Investigatory Powers Guide

Cabinet7th November 2013

Document History

Document Location - Legal Services/Legal/RIPA/Reg of Investigatory Powers Guide

Control Location: Code of Corporate Governance

Review Period: Annual

Reviewed by: Corporate Governance Group

Version Number / Version Date / Summary of Changes
1.0 / Revised Guidance

This document is owned by:

Name / Job Title / Version
Andrew Fotherby / Strategic Director / 1.1

This document has been distributed to:

Name / Job Title / Version
All CDC employees, Members, and on the public website / 1.0

INDEX

Section / Section Number
The background to RIPA / 3
Introduction / 5
The scope of this guide / 6
Consequences of not following RIPA / 8
The Surveillance Commissioner / 8
Covert Surveillance / 9
Directed Surveillance (DS) / 9
Covert Human Intelligence Sources (CHIS) / 10
Table 1 Flow Chart on the procedure for making an application to a Justice of the Peace / 13
Table 2 Flow Chart on the procedure followed by HMCTS and the Justice of the Peace / 14
Procedure for obtaining authorisations / 16
The Senior Responsible Officer / 16
Authorising Officers / 16
Investigating Officers - Action to be taken by person applying for authorisation / 17
Authorising Officers -Action to be taken by authorising surveillance / 19
Duration, review, renewal and cancellation of authorisations / 20
Duration / 20
Review / 21
Renewals / 22
Cancellations / 22
The RIPA Coordinator / 24
Legal Advice / 25
Glossary / 26
Designated Officers (Appendix A) / 28
RIPA Forms (Appendix B) / 30
Agents Form (Appendix C) / 31
Particulars to be contained in records for CHIS (Appendix D) / 32
RIPA Application and Authorisation Process (Appendix E) / 34
Application for judicial approval (Appendix F) / 40
Contact details for Her Majesty’s Courts and Tribunal Service (HMCTS) Gloucestershire (Appendix G) / 43
Non RIPA Surveillance Application Form (Appendix H) / 44

BACKGROUND TO

REGULATION OF INVESTIGATORY POWERS ACT 2000

1. The Regulation of Investigatory Powers Act 2000 (RIPA) was brought in to make sure that the ways investigatory powers are used by organisations, like Councils and Government Departments, complies with the Human Rights law, in particular the European Convention on Human Rights.

1. RIPA ensures that organisations that might want to use any kind of covert techniques to investigate people to consider whether it is really necessary to go that far instead of just using them because they can.

1. RIPA covers the following :-

• Intercepting letters, emails and phone calls

• Getting any kind of communication data from a provider, such as asking for mobile phone records or information from internet service providers or any email or web browser records

• Accessing any electronic data that has been protected by encryptions or passwords

• Covert surveillance either on private premises or in private vehicles

• Covert surveillance that takes place in a public place but is directed at a specific person

• Using informants and undercover officers.

1. The legislation lays down strict guidelines on the type of people who are allowed to use covert techniques and sets out which the purpose is for and the conditions under which they can be used, and also sets out rules relating to how the information obtained covertly must be handled and used.

1. Cotswold District Council (“the Council”) has laid down a procedural guide to allow the Council to undertake their legal enforcement duties without the risk of successful challenge to either the evidence gathered, or to potential breaches of human rights.

1. The Office of Surveillance Commissioners undertakes an assessment of how the Council implements the requirements of RIPA. These inspections are undertaken every two years by an Inspector visiting the Council and reviewing the standard of authorisation to undertake covert surveillance. The Council has been inspected twice since the introduction, the last one being in April 2010. The inspection report makes certain recommendations which have been incorporated into the Procedural Guide and advises that Members should be informed of RIPA and informed of the number of authorisations granted every year. The inspections are carried out by a Judge. In the latest inspection report the inspector acknowledges that the Council’s reliance on covert surveillance and hence RIPA has been substantially reduced since the last inspection. The last authorisation was granted by the Head of Legal and Property Services who has received intensive training on the subject in September 2009. Following the inspection, the Strategic Director has been nominated as the Council’s Senior Responsible Officer and the designated RIPA co-ordinator is named as Head of Legal and Property Services. Officers that are entitled to give authorisation have to undergo training under the new regime and these include the Chief Executive where certain types of authorisation is required (where confidential information is to be obtained, or the surveillance involves the use of juvenile covert human intelligence source). Other Officers that are entitled to grant authorisations are the Head of Legal and Property Services, the Strategic Director, the Public Protection Manager, the Fraud Manager and the Head of Environmental Services. The Heads of Service who have undergone RIPA training in the past will act as gate keepers within their own area of responsibility.

1. INTRODUCTION

1.1This Procedural Guide (the Guide) shall be readily available at the offices of Cotswold District Council (the Council). A copy can be obtained from the RIPA Co-ordinator, Legal Services, Trinity Road, Cirencester, Gloucestershire GL7 1PX. It is also available on the Council’s Website (

1.2The purpose of this Guide is to ensure that the Council complies with the Regulation of Investigatory Powers Act 2000 (RIPA). It provides information about RIPA, easy to follow procedures and flowcharts.

1.3The Guide has been introduced to regulate any covert surveillance carried out in the United Kingdom by Council Officers including the use of undercover officers, informants, and private investigators engaged to act as agents of the Council.

1.4Covert surveillance will be authorised and conducted in accordance with this Guide and shall be carried out only for the purpose of investigation of criminal offences or other purposes which the Council is legally required or legally empowered to investigate as part of its functions.

1.5Covert surveillance will only be used by the Council where it judges such use to be necessary and proportionate having regard to the seriousness of the crime or the matter being investigated and the history and character(s) of the individual(s) concerned.

1.6General Observation Activities – The general observation duties of public authority officers do not require authorisation under RIPA 2000 whether covert or overt. Such general observation duties frequently form part of the legislative functions of public authorities, as opposed to the pre-planned surveillance of a specific person or a group of people (paragraph 2.24 Code of Practice).

1.7Before authorising covert surveillance Authorising Officers shall have regard to the statutory Codes of Practice issued under Section 71 RIPA which can be obtained directly from the Office of Surveillance Home Office website ( Authorising officers must give particular consideration to the risk of intrusion into the privacy of others other than the specified subject of the covert surveillance. This is known as collateral intrusion and practical measures should be taken wherever practicable to avoid collateral intrusion.

There should be no situation in which an investigating officer engages in covert surveillance or uses a Covert Human Intelligence source without obtaining authorisation in accordance with the procedures set out in this Guide.

Please refer to the Glossary for further interpretation of the phrases and words shown in bold type in this Guide.

1.8Relevant Legislation

The Human Rights Act 1998

The Regulation of Investigatory Powers Act 2000

Home Office Covert Surveillance Code of Practice

Home Office Covert Human Intelligence Sources Code of Practice

• The Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010 together with an Explanatory Memorandum - This Order relates to the authorising officer level, what covert activity can be lawfully carried out and the lawful reason.
• The Regulation of Investigatory Powers (Covert Human Intelligence Sources: Code of Practice) Order 2010 together with an Explanatory Memorandum - This brings into force the revised Codes of Practice.
• The Regulation of Investigatory Powers (Covert Surveillance and Property Interference: Code of Practice) Order 2010 together with an Explanatory Memorandum - This brings into force the revised Codes of Practice and also bring into effect matters relating to legal privilege.
• The Regulation of Investigatory Powers (Communications Data) Order 2010 together with an Explanatory Memorandum - This changes the authorising officer level.

2.REGULATION OF INVESTIGATORY POWERS ACT 2000 (RIPA)

2.1The Regulation of Investigatory Powers Act 2000 (RIPA) provides a legal framework for the control and regulation of surveillance and information gathering techniques which public authorities undertake in the conduct of their duties. The need for such control has arisen from the enactment of the Human Rights Act 1998 (HRA) Article8 of the European Convention on Human Rights which states:-

1.Everyone has the right to respect for his private and family life, his home and his correspondence.

2.There shall be no interference by a public authority with the exercise of thisright except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for protection of the rights and freedom of others.

2.1.1The right under Article 8 is a qualified right and public authorities can lawfully interfere with that right for the reasons given in (2) of Article 8 as shown above.RIPA provides the legal framework for such lawful interference.

2.2Scope of this Procedural Guide

2.2.1This Guide is intended to cover the surveillance and information gathering techniques which are most likely to be carried out by this Council. In this context this also includes the investigation of internal fraud.

2.2.2Neither RIPA or this Guide covers the use of any covert surveillance, general observation that forms part of the normal day to day duties of Officers, the use of equipment to merely reinforce normal sensory perception such as binoculars or circumstances where members of the public who volunteer information to the Council.

Surveillance techniques which are not regularly undertaken by the Council in relation to members of the public, but which also come within the scope of RIPA are not covered in this document. Examples of these other surveillance techniques are:

§The interception of any communication such as postal, telephone or electronic communications without both the sender and receiver’s permission.

§The acquisition and disclosure of information relating to who has sent, or received any postal, telephone or electronic communication.

§The use of any person, other than a Council employee or agent, to establish or use a covert relationship with another person in order to gather, disclose or disseminate information which results from that relationship in the conduct of local authority business.

§The use of any person under the age of 18, whether or not a Council employee, to establish or use a covert relationship with another person in order to gather, disclose or disseminate information which results from that relationship in the conduct of local authority business.

§The control and disclosure of information held on computer or paper record

covered by the Data Protection Act.

2.2.3If it is intended to carry out such activity further guidance should be sought from the RIPA Co-ordinator.

2.2.4The interception of telecommunications sent and received by Council staff.

RIPA not only covers the observation of members of the public but would also cover the observation of staff and members as part of any internal investigation.

2.2.5This document does not address the assessment of risks that officers might encounter during investigations. Normal departmental policies on identifying such risks should be adopted if it perceived that any risk might arise from a specific operation. In this context, references to risk assessment in the Codes of Practice refer to the risk of collateral intrusion.

2.2.6Local authorities are restricted in the type of surveillance and information gathering techniques which they can be authorised to undertake under RIPA. These are contained within Part II of the Act which came into force on 25 September 2000. All investigations which involve covert surveillance or the use of a CHIS after this date should be undertaken in accordance with the authorisation procedures contained in this Guide.

2.3Consequences of not following RIPA

2.3.1Section 27 RIPA provides that surveillance shall be lawful for all purposes if authorised and conducted in accordance with the authorisation.

2.3.2Lawful surveillance is exempted from civil liability. Although failing to obtain authorisation does not make the surveillance unlawful per se, it does have consequences as set out below.

2.3.3According to Section 28 RIPA, authorisation should not be granted at all unless:-

• It is necessary under the grounds within Section 28(3) i.e., preventing/detecting crime or preventing disorder and
• It is proportionate to the aim to be achieved.

2.3.4The corollary is that if not carried out under RIPA procedures and within the parameters of that authorisation, then:-

• Evidence gathered may be inadmissible in court
• Victims of breaches could bring their own proceedings or defeat proceedings brought by the Council against them on human rights grounds, as being an infringement of Article 8, the right to respect for family and private life
• Although there are exceptions to Article 8 (e.g. acts done according to the law and necessary in the interest of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the promotion of health and morals, or the protection of the rights and freedom of others) these exceptions may not be open to the Council if it has not followed the RIPA provisions
• Successful human rights challenges can attract an award of financial compensation if that is the appropriate way of giving the successful victim just satisfaction. Not following RIPA could cost the Council money!
• A complaint against the Council may be made to the Office of Surveillance Commissioners Tribunal

2.4Surveillance Commissioner and Tribunals

2.4.1The Government has appointed a Surveillance Commissioner to review how public authorities implement the requirements of RIPA. The Commissioner has wide ranging powers of access and investigation. It is likely that the Council will receive periodic visits from the Commissioner’s staff whose job it is to check the Council’s compliance with RIPA. It is essential that everyone who engages in RIPA type activities is fully aware and complies with the law by following these procedures.

2.4.2A Tribunal system has been set up to deal with complaints from any person who considers that a public authority has breached a Convention Right in contravention of the Human Rights Act 1998.

2.4.3Further Assistance

Further guidance on any issue surrounding RIPA can be obtained from the Home Office web site or from the RIPA Co-ordinator (see Appendix A for details of RIPA Co-ordinator).

3.COVERT SURVEILLANCE

There are three categories of covert surveillance:

1. Directed Surveillance
2. Covert Human Intelligence sources, and
3. Intrusive Surveillance

3.1.1Intrusive Surveillance

Local authorities are not permitted to carry out intrusive surveillance but the information is included in Guide to avoid inadvertent use of intrusive surveillance.

Intrusive surveillance is defined as covert surveillance that:

(a)is carried out in relation to anything taking place on any residential premises or in any private vehicle; and

(b)involves the presence of any individual on the premises or in the vehicle or is carried out by means of a surveillance device

If the device is not located on the premises or in the vehicle, it is not intrusive surveillance unless the device consistently provides information of the same quality and detail as might be expected to be obtained from a device actually present on the premises or in the vehicle.

IMPORTANT! OFFICERS OF THE COUNCIL CANNOT AUTHORISE INTRUSIVE SURVEILLANCE

Operations which involve intrusive surveillance are limited to the Intelligence Services, Armed Forces, MOD, Police and HM Customs and Excise.

3.1.2If it is considered that surveillance which is intended to be undertaken may fall with the scope of intrusive surveillance, then further guidance should be sought from the RIPA Co-ordinator.

3.2Directed Covert Surveillance

3.2.1The majority of covert surveillance undertaken by local authority officers falls within the category of Directed Covert Surveillance.

3.2.2Directed Covert Surveillance (DCS) is defined as surveillance which is covert, but not intrusive, and undertaken:

(a)for the purpose of a specific investigation or operation;

(b)in such a manner as is likely to result in the obtaining of privateinformation about a person (whether or not that person is the target of the investigation or operation); and

(c)in a planned manner and not by way of an immediate responsewhereby it would not be reasonably practicable to obtain an authorisation prior to the surveillance being carried out. If the surveillance is not likely to obtain private information, the Codes do not apply - Paragraph 1.5 of the Code of Practice issued by the Home Office.

3.2.3It should be noted that it is irrelevant where the subject of the DCS is when he is being observed, e.g., at work. An authorisation is always required for DCS

3.2.4If you intend to instruct an agent to carry out DCS, the agent must sign and complete the form contained in Appendix C. The agent will be subject to the provisions of RIPA as if they were part of the Council. They may also be inspected by the OSC in respect of that particular operation. This should be pointed out during the instruction and contact stage. If advice is required please contact the RIPA Co-ordinator

3.3Covert Human Intelligence Sources (CHIS)

THIS COUNCIL IS HIGHLY UNLIKELY TO EMPLOY CHIS

3.3.1The term Covert Human Intelligence Source (CHIS) is used to describe people who are more commonly known as informants and are used more widely by the police or other similar organisations than by local authorities. However, a CHIS would also include work by officers of the Council or its agent working “undercover” whereby a covert relationship is established with another person. Such activity may be undertaken by the Council officers and its agents.

3.3.2A person is a CHIS if:

(a)he/she establishes or maintains a personal or other relationship with a person for the covert purpose of facilitating the doing of anything falling within paragraph (b) or (c);