Local Government Lawyer - To RIPA or Not To RIPA

Wednesday, 04 July 2012 00:00

The days of local authorities being able to use surveillance powers to tackle dog fouling
and littering offences will soon be over, writes Ibrahim Hasan.

From 1 November 2012, local authorities will face severe restrictions upon the grounds
for which they can authorise Directed Surveillance under the Regulation of Investigatory
Powers Act 2000 (RIPA).

The Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence
Sources) (Amendment) Order 2012 , SI 2012/1500 ("the 2012 Order") was made on 11
June 2012 and will come into force on 1 November 2012,

The 2012 Order amends the Regulation of Investigatory Powers (Directed Surveillance and
Covert Human Intelligence Sources) Order 2010 , SI 2010/521
("the 2010 Order"), which prescribes which officers, within a public authority, have the power to
grant authorisations for the carrying out of Directed Surveillance and the grounds, under Section
28(3) of RIPA, upon which authorisations can be granted. At present local authorities have one
ground; where it is necessary “for the purpose of preventing or detecting crime or preventing
disorder.” (Section 28(3)(b))

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Wednesday, 04 July 2012 00:00

From 1 November 2012, local authority Authorising Officers may not authorise Directed
Surveillance unless it is for the purpose of preventing or detecting a criminal offence and it
meets the condition set out in New Article 7A(3)(a) or (b) of the 2010 Order. Those conditions
are that the criminal offence which is sought to be prevented or detected is punishable, whether
on summary conviction or on indictment, by a maximum term of at least 6 months of
imprisonment , or would
constitute an offence under sections 146, 147 or 147A of the Licensing Act 2003 or section 7 of
the Children and Young Persons Act 1933. The latter are all offences involving sale of tobacco
and alcohol to underage children.

Background

These changes have not come out of the blue. Responding to media stories of councils
misusing “anti terror laws” both coalition parties promised in their election manifestos to
overhaul Part 2 of RIPA, which regulates local authorities, amongst others, when conducting
covert surveillance on citizens. They argued that such surveillance was often used to
investigate minor offences and in a disproportionate manner. The introduction of a Serious
Crime Test for Directed Surveillance was recommended in the Home Office review of
counter-terrorism and security powers published on 26 January 2011. 

Directed Surveillance has been the subject of substantial debate and controversy. It is often
conducted by local authorities to, amongst other things, investigate a benefit fraud or to collect
evidence of anti-social behaviour. Typical methods include covertly following people, covertly
taking photographs of them and using hidden cameras to record their movements. Introducing a
six months imprisonment test will ensure that such techniques are no longer an option when
local authorities are investigating “minor offences” such as dog fouling and littering.

But the 2012 Order also removes the second limb of Section 28(3)(b) (“preventing disorder”).
Directed Surveillance for the purposes of tackling anti social behavior will no longer be able to
be authorised unless of course the activity involves criminal offences involved carrying a
maximum prison term of six months or more. How will this impact on the work of local authority
Anti Social Behaviour Units?

There is an exception to the general rule though. Because of the importance of Directed

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Wednesday, 04 July 2012 00:00

Surveillance in corroborating investigations into underage sales of alcohol and tobacco, the
Serious Crime Test will not be applied when Directed Surveillance is being done in these cases.

The other recommendation of the RIPA Review (Magistrate’s Approval) will be implemented via
the Protection of Freedoms Act 2012  which received Royal Assent on 1 May 2012. The RIPA
provisions in this Act are yet to come into force but when they do they will require local
authorities to have all their RIPA surveillance authorisations (i.e. Directed Surveillance, CHIS
and the acquisition of Communications Data) approved by a Magistrate before they take effect.
(Read more here )

When the the Coalition Government published the Bill in February 2011, the Home Secretary,
announced
: “The first duty of the state is the protection of its citizens, but this should never be an excuse
for the government to intrude into peoples' private lives. Snooping on the contents of families'
bins and security checking school-run mums are not necessary for public safety and this Bill will
bring them to an end. I am bringing common sense back to public protection and freeing people
to go about their daily lives without a fear that the state is monitoring them.”

Most local authorities feel that this is a disproportionate response to inaccurate media stories  a
bout their “overzealous” use of RIPA. The reality is that most authorities only use their powers in
a handful of cases each year and only when there is no other viable means of investigating
offences and then in a reasonable and proportionate manner. The latest available
annual report
 by the Office of Surveillance Commissioners (2010/2011) states: “Generally speaking, local
authorities use RIPA/RIP(S)A powers sparingly with over 50% granting five or fewer directed
surveillance authorisations during the reporting period. Some 16% granted none at all.”

The changes to be made to the local authority RIPA regime via the 2012 Order, as well as the
Protection of Freedoms Act, will have a big impact on their investigation and enforcement
activities. Now is the time to review RIPA processes and procedures and to make staff aware of
the changing legal landscape.

Ibrahim Hasan is director of Act Now Training. This article first appeared in the Act Now
Blog .

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