GUIDANCE NOTE FOR HEADS OF SERVICE

THE REGULATION OF INVESTIGATORY POWERS ACT 2000

1. INTRODUCTION

The Regulation of Investigatory Powers Act 2000 (known as RIPA) was introduced to regulate the way in which investigations are carried out. The Council’s current RIPA Policy was approved by SMT on 10 May 2005.

1.1 What does the Act cover?

In certain circumstances, it will be necessary for investigating officers to obtain an authorisation before they undertake surveillance. The investigator will need to obtain authorisation for what the Act calls ‘directed surveillance’ and ‘covert human intelligence sources’.

There is a third type of surveillance in the Act that is called ‘intrusive surveillance. This is defined in the ‘Covert Surveillance - Code of Practice’ Section 5 as: “…covert surveillance carried out in relation to anything taking place on residential premises or in any private vehicle. This kind of surveillance may take place by means either of a person or device located inside residential premises or a private vehicle of the person who is subject to the surveillance or by means of a device placed outside which consistently provides a product of equivalent quality and detail as a product which would be obtained from a device located inside.”

N.B. This type of surveillance is only available to law enforcement agencies and therefore local authorities cannot issue such authorisations.

1.2 What are the general rules about Surveillance?

The investigator will need authorisation where s/he covertly undertakes the gathering of private information. Where the investigator makes it clear that s/he is from the Council, then this is not covert and the Act does not apply. Similarly, where for example an investigator is out on routine patrol and witnesses something, s/he does not need to get authorisation to carry out a surveillance.

1.3 What is ‘Directed Surveillance’?

This is defined in the ‘Covert Surveillance - Code of Practice’ Section 4 as surveillance which is: “…not intrusive and undertaken:

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

b) in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation); and

c) otherwise than by way of an immediate response to events or circumstances …”

Surveillance is regarded as covert where person subject to surveillance is not aware that such surveillance is taking place.

1.4 What are ‘Covert Human Intelligence Sources’ (CHIS)?

This involves the establishment or maintenance of a personal or other relationship with a person for the covert purpose of obtaining or disclosing private information.

The ‘Covert Human Intelligence Sources - Code of Practice’ gives guidance on the authorisation of the use or conduct of CHISs by public authorities under Part II of the Act. It should be noted that Section 1 of the Code states that: “The provisions of the 2000 Act are not intended to apply in circumstances where members of the public volunteer information to the police or other authorities, as part of their normal civic duties, or to contact numbers set up to receive information (such as Crimestoppers, Customs Confidential, the Anti Terrorist Hotline, or the Security Service Public Telephone Number). Members of the public acting in this way would not generally be regarded as sources.”

CHISs are used in police undercover and anti-terrorist operations where it is necessary to infiltrate ‘groups’. It is therefore highly unlikely that the Council would use CHISs.

2. AUTHORISATIONS

2.1 Who is responsible for authorisations?

Six Heads of Service have been given the task of approving applications for authorisation, these are:

CX - Assistant Chief Executive

C&E - Head of Environmental Health Services

- Head of Administration & Cemeteries

E&D - Head of Administration & Car Parks

CS - Head of Treasury Services

- Head of Legal Services

2.2 What must Heads of Service do before they issue an authorisation?

Heads of Service will have to consider each application on its merits and will have to look at the investigation methods proposed and the request being made. The Head of Service will then have to decide if an authorisation is:

·  necessary on one of the grounds provided in section 28(3) or 29(3) of RIPA

·  proportionate (i.e. a sledge hammer is not being used to crack a nut).

Point 2.4 of the ‘– Code of Practice’ states that “Obtaining an authorisation under the 2000 Act will only ensure that the authorised use or conduct of a source is a justifiable interference with an individual's Article 8 rights if it is necessary and proportionate for the source to be used. The 2000 Act first requires that the person granting an authorisation believe that the authorisation is necessary in the circumstances of the particular case for one or more of the statutory grounds in section 29(3) of the 2000 Act.”

Use of an ‘Impact Assessment’ matrix (see the ‘Monitoring at Work – Impact Assessment’ example on the Intranet) is an ideal way of ensuring that full consideration has been given to whether proposed surveillances are both necessary and proportionate. Please also refer to the ‘How to carry out an Impact Assessment’ guide on the Intranet which gives examples of what needs to be considered to justify proposed surveillance.

2.3 What are the ‘grounds provided’ in section 28(3) or 29(3) of RIPA?

Section 28 covers ‘directed surveillance’ and section 29 covers ‘covert human intelligence source’. The grounds available under each section for authorising surveillance are:

a) in the interests of national security

b) for the purpose of preventing or detecting crime or of preventing disorder

c) in the interests of the economic well-being of the United Kingdom

d) in the interests of public safety

e) for the purpose of protecting public health

f) for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department

g) for any purpose (not falling within paragraphs (a) to (f)) which is specified for the purposes of this subsection by an order made by the Secretary of State.

Ground b) is the usual basis for authorising surveillances

2.4 What does ‘proportionate’ mean?

If a Head of Service considers that the authorisation is necessary, then point 2.5 requires that “… the person granting the authorisation must believe that the use of a source is proportionate to what is sought to be achieved by the conduct and use of that source. This involves balancing the intrusiveness of the use of the source on the target and others who might be affected by it against the need for the source to be used in operational terms. The use of a source will not be proportionate if it is excessive in the circumstances of the case or if the information which is sought could reasonably be obtained by other less intrusive means. The use of a source should be carefully managed to meet the objective in question and sources must not be used in an arbitrary or unfair way.”

N.B. Heads of Service must therefore always consider if there is any other way of undertaking the investigation and obtaining information other than by surveillance.

2.5 Collateral Intrusion

The Head of Service will also need to consider if there will be any collateral intrusion as a result of the surveillance. This means, for example, where the investigator is watching individual X, but as a result, obtains information about individual Y. The Head of Service will need to consider how, if possible, the investigator can prevent or reduce collateral intrusion, and what the effects of any intrusion may be.

2.6 How long will the authorisations last?

A directed surveillance authorisation will last for 3 months from the day on which the grant takes effect unless cancelled or renewed. All authorisations must be regularly reviewed and cancelled when they are no longer necessary or proportionate.

A covert human intelligence authorisation will last for 12 months from the day on which the grant or renewal takes effect unless cancelled or renewed. All authorisations must be cancelled when they are no longer necessary or proportionate.

2.7 Can Heads of Service give oral authorisations?

Authorisations should always be given in writing in all but the most urgent of cases. In emergencies, a statement that the authorising officer has expressly authorised the action should be recorded in writing as soon as is reasonably practicable. This can be completed by the investigator, but must be endorsed by the Head of Service at the earliest opportunity. Oral authorisations expire after 72 hours, from the time when the grant or renewal of an authorisation takes effect.

2.8 What will happen to the authorisations?

As soon as possible after an authorisation is given, the original copy of the authorisation should be passed to the Head of Audit so that it can be entered onto the central register and put onto the central corporate file. A copy of the authorisation should be kept on the investigation’s file for reference.

N.B. Paragraph 4.14 of the Code of Practice states that: “Authorising officers should not be responsible for authorising investigations or operations in which they are directly involved, although it is recognised that this may sometimes be unavoidable, especially in the case of small organisations, or where it is necessary to act urgently. Where an authorising officer authorises such an investigation or operation the central record of authorisations (see paragraphs 2.14 -2.15) should highlight this and the attention of a Commissioner or Inspector should be invited to it during his next inspection.”

3. WHY IS ALL OF THIS NECESSARY?

If the Council does not comply with the provisions of RIPA:

·  evidence may be deemed to be inadmissible in Court

·  the Council may be subjected to a claim under the Human Rights Act 1998

4. THE OFFICE OF SURVEILLANCE COMMISSIONERS

This body was set up to monitor usage of RIPA, its Commissioners carry out random inspections to ensure compliance with the Act.

5. FURTHER ADVICE

This note only aims to set out a guide to the Act and it is by no means exhaustive. If Heads of Service or their officers have any queries about the Act or our procedures please contact either Legal Services or the Head of Audit, or access the RIPA page on the Council’s Internet site (under ‘Communication & Information’) for links to the Office of the Surveillance Commissioner’s documents.

Exeter City Council

GuidanceNote-revised-2005-06