Covert Surveillance Policy and Procedure

The Regulation of Investigatory Powers Act 2000 (RIPA) provides the legislative framework within which covert surveillance operations must be conducted in order to ensure that investigatory powers are used lawfully and in accordance with human rights.

This document takes into account guidance issued by the Home Office under s71 of the 2000 Act and pursuant to the following statutory instruments:

• the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010, SI 2010/521
• the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Code of Practice) Order 2010, SI 2010/462
• the Regulation of Investigatory Powers (Covert Surveillance and Property Interference: Code of Practice) Order 2010, SI 2010/463

This document takes into account the Protection of Freedoms Act 2012.

Officers and investigators involved in covert surveillance operations must familiarise themselves with the provisions of:

• article 8 of the European Convention on Human Rights 1958
• the Human Rights Act 1998
• part 2 of the Regulation of Investigatory Powers Act 2000
• the Covert Surveillance and Property Interference Revised Code of Practice (“the DS Code”)
• the Covert Human Intelligence Sources Revised Code of Practice (“the CHIS Code”)

Applications for access to communications data shall be made via the National Anti-Fraud Network (NAFN).

The most recent versions of the DS Code and the CHIS Code were issued in August 2018. Whilst the codes are not themselves law, they are citable in a court of law and any deviation 7 from them may have to be justified. Council officers involved in surveillance activities should be familiar with their content. Read the Codes of practice.

Copies of forms referred to in this document can currently be found at www.gov.uk/government/collections/ripa-forms--2

Visit the Home Office website.

The Human Rights Act 1998 (which brought much of the European Convention on Human Rights and Fundamental Freedom 1950 into UK domestic law) requires the Council, and organisations working on its behalf, pursuant to Article 8 of the European Convention, to respect the private and family life of citizens, their home and correspondence.

Covert surveillance may constitute an interference with the privacy of individuals who are subject to investigation and of members of the public who are present on a site which is subject to surveillance. Such an interference engages an individual’s right to private life, family life, home and correspondence under Article 8(1) ECHR. However, interference with that right can be justified where it is prescribed by law and proportionate to the pursuit of a legitimate aim. Part II of RIPA provides a statutory mechanism for authorising covert surveillance and the use of a ‘covert human intelligence source’. It is intended to ensure that the proper balance is struck between the right to privacy and, in the local authority context, the legitimate aim of preventing or detecting crime and preventing disorder.

It is vital that the substantive requirements and the process set out in Part II of RIPA are adhered to. Provided these requirements are complied with, the Council and its officers should have a legal defence to any legal proceedings by virtue of S27, which states that conduct under Part II is lawful provided it is authorised; and is in accordance with that authorisation.

The information obtained by surveillance in accordance with Part II of RIPA will, provided lawfully obtained, be admissible in criminal, civil and tribunal proceedings. However, failure to comply with Part II can also render information obtained by surveillance inadmissible. It is therefore vital that the requirements put in place under RIPA are observed to protect the interests of both the Council and the Officers involved.

The use of investigatory powers in the UK is overseen by the Investigatory Powers Commissioner. Read further information on the role of the Commissioner and the Investigatory Powers Commissioner’s Office.

When making authorisations Authorising Officers must be aware that each authorisation (or renewal of an authorisation) will be subject to judicial approval.

The Protection of Freedoms Act 2012 amends RIPA, to require that where an Authorising Officer has granted an authorisation for the use of directed surveillance or for the use of a CHIS, judicial approval will be required. The Council will be required to make an application, without giving notice, to the Magistrates’ Court. The Magistrates will give approval if at the date of the grant of authorisation or renewal of an existing authorisation if and only if, they are satisfied that:

• there were reasonable grounds for believing that obtaining the covert surveillance or use of a human covert intelligence source was reasonable and proportionate and that these grounds still remain
• the “relevant conditions” were satisfied in relation to the authorisation

Relevant conditions are that:

• the relevant person was designated as an authorising officer
• it was reasonable and proportionate to believe that using covert surveillance or a covert human intelligence source was necessary and that the relevant conditions have been complied with
• the grant or renewal of any authorisation or notice was not in breach of any restrictions imposed under section 25(3) of RIPA; and
• any other conditions provided for by an order made by the Secretary of State were satisfied

If the Magistrates’ Court refuses to approve the grant of the authorisation, then it may make an order to quash that authorisation.

No activity permitted by the authorisation granted by the authorising officer may be undertaken until the approval of the Magistrates’ Court to that authorisation has been obtained.

The form to be used for seeking judicial approval from the Magistrates Court is attached at Appendix F.