Covert Surveillance and RIPA

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1 Surveillance Law Training and Resources Covert Surveillance and RIPA New Covert Surveillance and CHIS Orders Home Office Consultation 2009 (April 2009) The Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010 Ibrahim Hasan Act Now Training The Regulation of Investigatory Powers (Covert Surveillance and Property Interference: Code of Practice) Order 2010 The Regulation of Investigatory Powers (Covert Human Intelligence Sources: Code of Practice) Order 2010 RIPA (Directed Surveillance and Covert Human Intelligence Sources) Order 2010 Consolidates all previous orders into one Sets out who can authorise directed surveillance and and CHIS for what purposes Authorising Officer for councils revised : "Director, Head of Service, Service Manager or equivalent" What s New New Order on Communications Data New Orders on Covert Surveillance & CHIS New Codes of Practice on Covert Surveillance & CHIS 6 th April 2010 Authorising Officer for others revised Part 2 Codes New Codes in General Covert Surveillance (Directed and Intrusive) Covert Human Intelligence (CHIS) Revised 6 th April 2010 More detailed More real life examples Heavily based on OSC Procedures and Guidance document (Dec 08) 1

2 Surveillance Law Training and Resources The RIPA Shield Surveillance Section 27 (a) lawful for all purposes. (b) no civil liability re: incidental conduct RIPA Article 8 - Privacy Everyone has the right to respect for his private and family life his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the rights and freedoms of others. Key Human Rights Concepts Necessity Proportionality Collateral Intrusion Is it Directed Surveillance? CCTV and ANPR Are you carrying out surveillance?no Yes Is it covert? Is it for a specific investigation or operation? Likely to obtain private information? Not an immediate response to events? RIPA does NOT apply DS Code (2.28 & 2.29) Used in a covert and pre planned manner Falls within definition of Directed Surveillance ACT APPLIES TO YOU 2

3 Surveillance Law Training and Resources Noise Monitoring Para 2.29 Specific situations not requiring Directed Surveillance authorisation: the covert recording of suspected noise nuisance where the intention is only to record excessive noise levels from adjoining premises and the recording device is calibrated to record only excessive noise levels. In such circumstances the perpetrator would normally be regarded as having forfeited any claim to privacy and an authorisation may not be necessary. A person who CHIS - S.26(8) A. Establishes or maintains a personal or other relationship with a person for the covert purpose of facilitating b or c below B. Covertly using such relationship to obtain information or provide access to information C. Covertly disclosing information obtained by the use of such a relationship CHIS Code (2.10) Unlike directed surveillance, which relates specifically to private information, authorisations for the use or conduct of a CHIS do not relate specifically to private information, but to the covert manipulation of a relationship to gain any information. Article 8 includes the right to establish and develop relationships. Accordingly, any manipulation of a relationship by a public authority (e.g. one party having a covert purpose on behalf of a public authority) is likely to engage Article 8, regardless of whether or not the public authority intends to acquire private information. When to authorise? It is therefore strongly recommended that a public authority consider an authorisation whenever the use or conduct of a CHIS is likely to engage an individual s rights under Article 8, whether this is through obtaining information, particularly private information, or simply through the covert manipulation of a relationship. What can be authorised? Test Purchases Use or conduct of a CHIS Any action on behalf of a public authority to induce, ask or assist a person to engage in the conduct of a CHIS or to obtain information by means of the conduct of a CHIS E.g. Professional witnesses, Police informants Code (2.12) : a relationship of seller and buyer may be deemed to exist between a shopkeeper and a customer even if only a single transaction takes place. Repetition is not always necessary to give rise to a relationship, but whether or not a relationship exists depends on all the circumstances including the length of time of the contact between seller and buyer and the nature of any covert activity. 3

4 Surveillance Law Training and Resources Test Purchases (2) See examples in Code Consider: Nature of relationship Its length Whether a recording device is used New Record Keeping Requirements Record whether authorisation given by individual involved directly in investigation Date and time when any instruction to cease surveillance was given Senior Responsible Officer Recommended best practice Member of corporate leadership team Responsible for ensuring all Authorising Officers are of appropriate standard SRO s Responsibilities the integrity of the process in place for the management of CHIS and Directed Surveillance compliance with Part 2 of the Act and Codes engagement with the OSC inspectors when they conduct their inspections oversight of the implementation of postinspection action plans approved by the OSC Members Role Review use of RIPA and set policy at least once a year Consider internal reports on a quarterly basis Not to be involved in decisions on specific authorisations Practical Steps Raise awareness Assign responsibilities Change policies and procedures Consider training for members and officers 4

5 Surveillance Law Training and Resources 5

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