COUNTY BOROUGH OF BLAENAU GWENT
REPORT TO: / CHAIR AND MEMBERS OF
THE AUDIT COMMITTEE
REPORT SUBJECT: /
REGULATION OF INVESTIGATORY POWERS ACT (RIPA)
REPORT AUTHOR: / ALWYN HOLLAND, CONSTITUTION OFFICER
LEAD OFFICER/ DEPARTMENT / HEAD OF LEGAL AND CORPORATE COMPLIANCE / MONITORING OFFICER
Summary Report
1.0 /

PURPOSE OF REPORT

1.1 / To inform Members of the Committee of the use of RIPA by the Council and the results of a recent inspection by the Office of Surveillance Commission.
2.0 /

LINK TO CORPORATE STRATEGIES

2.1 / Improving the Living Environment.
3.0 /

SUMMARY / PROPOSALS

3.1 / The Regulation of Investigatory Powers Act (RIPA) provides assurance that surveillance carried out by public bodies is lawful, necessary and proportionate.
The Council has only used these powers on a limited number of occasions and it relates to covert surveillance. There is, however, a formal process to be undertaken each time it is to be used and it must be authorised.
3.2 / Changes in the Regulations in 2012, however, meant that any authorisation must be approved by a Magistrates’ Court and Officers must attend to justify the use of RIPA to reflect these changes, and this was carried out.
3.3 / In addition an inspection of the use of RIPA was carried out in April 2014 and the result and recommendations of that inspection are set out in the detailed report.
4.0 /
RECOMMENDATIONS
4.1 / That the Committee consider the report and inspection report and endorses the recommendation put forward and action taken.
Detailed Report
1.0 /
PURPOSE
1.1 / To inform Members of the Committee of the use of RIPA by the Council in the preceding 12 months and the results of an inspection by the Office of Surveillance Commissioners.
2.0 /

BACKGROUND

2.1 / The Regulation of Investigatory Powers Act 2000 (RIPA) provides for, and regulates the use of, a range of investigative powers, by public bodies including the police service and local authorities. The main purpose of the RIPA is to ensure that surveillance (and other techniques) undertaken is appropriate so that if there is any interference with human rights it is done in a lawful way Article 8 of the European Convention on Human Rights (ECHR) (the right to privacy).
2.2 / The legislation sets out when authority is required form a Senior Officer in the Organisation to enable the gathering of information by surveillance techniques. This is to ensure that the act is lawful, necessary and proportionate.
2.3 / The Committee considered the previous report in 2013, which endorsed the present Surveillance Policy and indicated that only 5 authorisations took place in 2012 / 2013.
3.0 /

PREVIOUS INSPECTION REPORT UNDERTAKEN IN 2011

3.1 / The recommendations made in the inspection in 2011 were as follows:
3.2 / (a) Recommendation 1
Revisit Corporate policy to include the amendments and additional information set out in the inspection report.
Action taken
Corporate policy has been reviewed and amended in line with the previous inspection findings. Recommendation discharged.
(b) Recommendation 2
Co-ordinated training strategy to be introduced (Repeat recommendation).
Action
Whilst training has been carried out there is no central record of the training that has been provided and to whom. Training remains ongoing and a central record is to be drawn up by the Head of Legal and Corporate Compliance. Recommendation discharged, subject to introduction of central training record.
(c) Recommendation 3
Compliance oversight procedures to be put in place (repeat recommendation).
Action
Whilst there is now an appointed SRO, there remains a requirement for an oversight and ‘quality assurance’ process for applications and subsequent authorisations. Discussion with the Head of Legal and Corporate Compliance indicated that a member of the Legal Department may be given this responsibility. Subject to such an initiative being introduced, the recommendation is discharged.
3.3 /

Policies and Procedures

The Corporate Directed Surveillance Policy is now in place and provides guidance on the use of the 2000 Act, along with the revisions brought about by the introduction of the Protection of Freedoms Act. For the latter requirement, both the Authorising Officer and Applicant will be present when magisterial concurrence is sought.
3.4 / It is the view that the recommendations in the main have been carried out other than the matters highlighted. It is suggested that no further action is required.
4.0 /
LATEST INSPECTION REPORT 2014
4.1 / An executive decision was made following the last inspection visit to appoint the Chief Executive as SRO. However, following observations made in the course of the current inspection in 2014, it is timely to review this arrangement.
4.2 / Following discussions it is now suggested that the Head of Legal and Corporate Compliance undertakes the SRO role as she has responsibility for corporate compliance that would include ensuring that Authorising Officers are of an appropriate standard and that OSC recommendations are discharged.
4.3 / The use of Social Networking Sites (SNS) for investigative purposes is a growth area and it is recommended that the Council introduces a Standard Operating Procedure for such use. The current guiding principles within the OSC Procedures and Guidance document should be considered.
4.4 /

Related Training

A programme of training has been undertaken, November 2012 and February 2013, since the last inspection visit for both Authorising Officers and practitioners. A central training record is now to be introduced.
5.0 /

OTHER MATTERS TO BE CONSIDERED

5.1 /

Central Record of Authorisations

This record is still maintained in handwritten ledger format and is compliant with the requisite CSPI Code of Practice. The Inspector was of the view that the Council may wish to consider an electronic record as opposed to the manual ledger.
5.2 / Directed Surveillance
Authorisations sought since the Protection of Freedoms Act have been in respect of benefit fraud investigations. The introduction of the Single Fraud Investigation Service (SFIS) is likely to see a reduction in applications for directed surveillance. In the main, applications followed the template approach promoted by the Department for Works and Pensions (DWP). Early review dates by the Authorising Officer is desirable to monitor proportionality and collateral intrusion and would not unnecessarily restrict the covert activity of the practitioner.
5.3 / Where magisterial concurrence had been required, a copy of the approval was attached to the authorisation. There appeared to be an inconsistency in the retention of original and copies of authorisations. The corporate policy requires that originals are maintained by Legal Services with copies being retained within business areas, a practice that would be in accord with OSC advice. Changes will be made so that consistency is achieved.
5.4 / Authorisation statements were of a reasonable standard, but would benefit from clarity as to where covert activity can take place and Authorising Officers remembering that it is their responsibility to evidence the consideration given to matters of necessity, proportionality and collateral intrusion. Cancellation statements undertaken by Authorising Officers should follow OSC guidance, although it is acknowledged that the layout of the current Home Office forms is not particularly user friendly in this regard. There was recurring evidence of Authorising Officers failing to record effective authorisation periods, with only the date of signature being recorded. This should be rectified.
5.5 / During a dip-sample of earlier records it was noted that authorisation had been given by a now retired Authorising Officer, for two members of Trading Standards to make contact via the internet with an individual selling counterfeit goods and then attend the individual’s home address and purchase some of the goods on offer. The Trading Standards Officers were to be in possession of mobile telephones in open microphone mode whilst in residential premises, for safety purposes. From the cancellation it would appear that the operation was successful. However, it was noted by the Inspector that the incorrect procedure had been adopted in this case.
5.6 / Advice was given that the matter should be further investigated to ensure that Authorising Officers are fully cognisant as to what represents property interference and intrusive surveillance. In addition, the question was posed as to how the action undertaken was not that of a CHIS, an authorisation for which and suitable conduct authority, would have given authorisation for a surveillance device to be taken into residential premises. The SRO for the future should make themselves aware of the requirement to report to the Chief Surveillance Commissioner of any unauthorised covert activity that has taken place.
5.7 / The foregoing events clearly illustrate the dangers of not having in place a robust and independent quality assurance process. As all future authorisations will have to proceed for magisterial concurrence there is an expectation that Legal Services will fully discharge this responsibility.
5.8 /

Technical Equipment

Limited technical equipment is held by this Authority.
5.9 /

CCTV

No use of CCTV assets has been made for covert purposes. Advice was given that the operating protocol with Gwent Police should be subject of regular review to ensure that the requirements of the protocol are being fully discharged.
6.0 /

CONCLUSIONS

6.1 / As for many local authorities, the restrictions of the Protection of Freedoms Act have seen a significant reduction in the use of powers under the 2000 Act. The more intrusive role of Legal Services in quality assuring applications is now evident, but this should be extended to authorisation statements.
6.2 / It was noted by the Inspector in his final report that the New Head of Legal and Corporate Compliance has a clear grasp of the requirement for corporate compliance standards and this new focus will ensure that events as reported upon within this report will not reoccur.
6.3 / The arrangements made for the inspection and engagement of all staff involved in the process was much appreciated.
7.0 /

RECOMMENDATIONS

7.1 /

Recommendation 1

Clarity on appointment and role of SRO. (Paragraph 11 of the Inspection Report)
7.2 / Recommendation 2
Introduction of Social Networking Sites investigation policy. (Paragraph 12)
7.3 / Recommendation 3
Improved recording of effective authorisation periods by Authorising Officers. (Paragraph 17)
8.0 /
AUTHORISATIONS 2013 / 2014
8.1 / There were 2 authorisations for RIPA in 2013 / 2014. These were carried out in accordance with the new arrangements and decisions made by the Magistrates’ Court to authorise the use of RIPA. The authorisations related to the following:
Two Housing Benefit Fraud cases.
In one case it has been to Court and found in favour of the Council and a sanction imposed.
The other case is awaiting a Court hearing.
9.0 /

RECOMMENDATIONS

That the Committee accepts the recommendations of the inspection contained in the report and endorses the following:

(a) The designation of the Head of Legal and Corporate Compliance as the Senior Responsible Officer in place of the Chief Executive to prevent any conflict of interest.

(b) The introduction of a standard operating procedure for investigations purposes regarding Social Networking sites.
(c) Improved recording of effective authorisation periods by Authorising Officer.
Alwyn Holland
08.07.14
REF: AH/CS