Presentation to Terra Firma Chambers Local Government Conference 2013 on Regulation of Investigatory Powers

1. 1
Reducing Risk of Challenge:
The Where, What and How of
Using Regulated Investigatory
Powers
Robert Sutherland, Advocate
Terra Firma Chambers

2. 2
The Where, What and How of
Using Regulated Investigatory
Powers

3. 3
The Where, What and How of
Using Regulated Investigatory
Powers
• Halford v UK, (1997) 24 EHRR 523
- alleged telephone tapping (1990)
• Connor v HMA, 2002 SLT 671
- surveillance of entrance to a block of flats (1998)
• Kinloch v HMA, 2013 SCCR 100
- following suspects driving about and stopping at various
locations (2008)

4. 4
The Where, What and How of
Using Regulated Investigatory
Powers
• Regulation of Investigatory Powers Act 2000
– Part I : interception of communications sent by public postal
services or public telecommunications systems
– Part II : regulation of surveillance and use of covert human
intelligence sources
– Part III : encrypted intercepted information
– Part IV : Interception of Communications Commissioner;
Intelligence Services Commissioner; Investigatory Powers
Tribunal
– Part V : miscellaneous and supplementary provisions

5. 5
The Where, What and How of
Using Regulated Investigatory
Powers
• Regulation of Investigatory Powers (Scotland) Act 2000
– regulation of surveillance and the use of covert human
intelligence sources
– appointment by the Scottish Government of Surveillance
Commissioners in respect of the use of powers under
RIP(S)A
– Tribunal appointed under RIPA to deal with complaints in
relation to conduct to regulated by RIP(S)A
• Cross border operations
– RIPA, Section 76: RIP(S)A deemed = RIPA authorisation
– lasts for up to 3 weeks, provided RIP(S)A authorisation
remains in force

6. 6
The Where, What and How of
Using Regulated Investigatory
Powers
• Communications Data
– where necessary for purposes of preventing or detecting
crime or of preventing disorder
– restricted to subscriber information (sender) and service use
information (when/duration) – not traffic date =
content/point of origin/receiver
• Directed Surveillance
• Intrusive Surveillance
• Covert Human Intelligence Sources

7. 7
The Where, What and How of
Using Regulated Investigatory
Powers
• Surveillance
– includes monitoring, observing or listening to persons, their
movements, their conversations or their other activities or
communications
– recording anything monitored, observed or listened to
– using any device or apparatus designed or adapted for use in
surveillance

8. 8
The Where, What and How of
Using Regulated Investigatory
Powers
• Intrusive Surveillance
– intrusive if, and only if, it is 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 an individual on the premises
or in the vehicle or is carried out by means of a
surveillance device
– not intrusive to extent that carried out by means only of a
surveillance device designed or adapted principally for
purpose of providing information about location of a vehicle
– not intrusive unless device consistently provides information
of same quality and detail as might be expected from a
device present on the premises or in the vehicle

9. 9
The Where, What and How of
Using Regulated Investigatory
Powers
• Intrusive Surveillance
– stepping onto residential property, e.g. garden path
– video recording inside residential premises
– local authorities = NO!
• Non Intrusive Surveillance
– CCTV of a street or other public place, or non-residential
private property

10. 10
The Where, What and How of
Using Regulated Investigatory
Powers
• Directed Surveillance and Covert Human Intelligence
Sources
– where necessary –
(a) for the purpose of preventing or detecting crime or
preventing disorder;
(b) in the interests of public safety; or
(c) for the purpose of protecting public health

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The Where, What and How of
Using Regulated Investigatory
Powers
• Directed Surveillance
– covert surveillance [carried out in a manner calculated to
ensure that person subject to surveillance is unaware that it
is or may be taking place not intrusive]
– undertaken for purposes of a specific investigation or a
specific operation
– undertaken in such a manner as likely to result in obtaining
of private information [any information relating to a person’s
private or family life] about any person
– not carried out 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 beforehand

12. 12
The Where, What and How of
Using Regulated Investigatory
Powers

13. 13
The Where, What and How of
Using Regulated Investigatory
Powers
• Covert Human Intelligence Sources
– a person who establishes or maintains a personal or other
relationship with another person for the covert purpose of
obtaining information or the provision of access to any
information, or who covertly discloses information obtained
by the use of such a relationship or as a consequence of the
existence of such a relationship
– covers undercover officers, informants and people used to
make test purchases, including a local authority’s own
trading standards official

14. 14
The Where, What and How of
Using Regulated Investigatory
Powers
• Protection of Freedoms Act 2012
– mainly England, Wales and Northern Ireland
– 1 November 2012
– local authorities required to obtain judicial approval prior to
using any covert techniques
– authorisations and notices under RIPA will only be given
effect once an order has been granted by a justice of the
peace in England and Wales, or a district judge in Northern
Ireland; or a sheriff in Scotland (for communications data)
– use of directed surveillance under RIPA limited to
investigation of crimes which attract a custodial sentence of
6 month or more, with the exception of offences relating to
the underage sale of alcohol and tobacco.

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The Where, What and How of
Using Regulated Investigatory
Powers
• RIPA Authorisation – Communication Data
– Director, Head of Service or Service Manager or equivalent
– in writing
– valid for a month, from the date of sheriff’s approval
– renewals must be made before expiry of the month
– authorising person requires to be satisfied that proportionate
– local authority to keep copy of all original documentation,
provide copy of authorisations, notices, other relevant
documentation to sheriff

16. 16
The Where, What and How of
Using Regulated Investigatory
Powers
• RIP(S)A Authorisation – Directed Surveillance + CHIS
– Assistant Head of Service or Investigation Manager or above
– if urgent may be granted orally, otherwise it must be in
writing
– authorising person requires to be satisfied that necessary for
one of the statutory purposes
– authorising person requires to be satisfied that investigation
activity proportionate to what is sought to be achieved
– authorising person requires to take into account risk of
intrusion into the privacy of those not subject of
investigation
– collateral intrusion - assess risk; notify; authorise?

17. 17
The Where, What and How of
Using Regulated Investigatory
Powers
• Importance of record keeping
– centrally held retrievable records
– kept for 3 years
– additional records to be kept
• Surveillance Commissioners
• Interception of Communications Commissioner

18. 18
The Where, What and How of
Using Regulated Investigatory
Powers
• Regulation of Investigatory Powers Tribunal
– remedies
• statement that a determination in favour of complainant:
– information about findings
– cancellation or quashing of authorisations
– destruction of records: Rugby Borough Council – no
order
– compensation: Rugby Borough Council - £2,500
awarded
• statement that no determination in favour of complainant
– Kennedy v UK, (2011) 52 EHRR 4

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The Where, What and How of
Using Regulated Investigatory
Powers
• Regulation of Investigatory Powers Tribunal
– inquisitorial role
– no power to award costs?
• W v Public Authority
– http://www.ipt-uk.com
• how to complain + complaint forms
• rulings
• Human Rights claims – intrusive surveillance

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The Where, What and How of
Using Regulated Investigatory
Powers
• Planning and Environmental Enforcement
– Rugby Borough Council - use of home for business purposes
• Education - school catchment areas
– Paton v Poole Borough Council – allegation that falsely
claiming to live in school catchment area
• Housing Benefit and Council Tax Benefit – fraud
• Licensing regimes
• Anti-social behaviour –
– noise monitoring equipment not covered by RIP(S)A?
• Trading standards
• Own employees

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The Where, What and How of
Using Regulated Investigatory
Powers

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The Where, What and How of
Using Regulated Investigatory
Powers
• What is reason for investigation, and its purpose?
• Scope of investigation proportionate to reason and
purpose?
• RIP(S)A applies, even if no breach of Art. 8 or another
power to justify an investigation
• Covert – no requirement to notify subject of investigation
• Halford = intrusive surveillance, and unlawful if LA
• Connor + Kinloch = directed surveillance; not intrusive
surveillance
• Need for intrusive surveillance = police investigation

23. 23
Reducing Risk of Challenge:
The Where, What and How of
Using Regulated Investigatory
Powers
Robert Sutherland, Advocate
Terra Firma Chambers