Changes to RIPA. It is worth considering the history and purposes of RIPA before examining the changes and their potential impact.

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1 Bulletin Changes to RIPA As you may be aware, significant changes in the way local authorities can use the powers to conduct covert surveillance contained in the Regulation of Investigatory Powers Act 2000 ( RIPA ) come into effect on 1 st November Significant media and central government criticism of the uses made of covert surveillance powers by local authorities have resulted in restrictions contained in the Protection of Freedoms Act 2012 ( PFA ). Usually these criticisms have been based on claims that councils have been misusing anti-terror legislation for allegedly mundane or trivial purposes. It is worth considering the history and purposes of RIPA before examining the changes and their potential impact. The introduction of the Human Rights Act 1998 ( HRA ) in October 2000 brought with it the protection of private and family life contained in Article 8. Interference with that right could only be on the basis of a specified ground and in accordance with the law. Until the introduction of RIPA, there was no statutory basis for covert surveillance in England and Wales. RIPA allows 3 types of covert surveillance, but only two, directed surveillance ( DS )and the use of covert human intelligence sources ( CHIS ) were available to local authorities, together with the ability to obtain telecommunications data (but not content). Intrusive surveillance has never been possible for local authorities. Any authorisation by a local authority had to be, and still has to be, necessary (on specified grounds) and proportionate. Originally, DS and CHIS could be used by local authorities on any ground detailed in Article 8(2) but in January 2004 that was reduced to one ground: for the purpose of preventing or detecting crime or of preventing disorder. So unless the matter constituted a crime or disorder, a RIPA authorisation could not be obtained. Criticism of local authorities was widespread, with numerous examples being cited of RIPA being used to allow covert surveillance on people for trivial matters. These included: observing parents of a child who we suspected of lying about their address to attempt to get the child into a better performing school (Paton v Poole BC IPT 29 th July hidden cameras to observe dog-fouling; littering; misuse of disabled parking badges; false claims for 1

2 damages, working whilst claiming sick pay ( ent) puppy test purchases, dating and escort agencies; animal movements and fly tipping (see There has always been a question over whether a RIPA authorisation was required for test purchases. As a test purchase of necessity involves entering into a contractual relationship, for concealed (or covert) purposes, it seems that it would require a CHIS. If private information is obtained as part of the operation, a DS would be required. S26(7) of RIPA defines a CHIS and s26(10) defines private information. In the absence of any case law, James Button & Co has always advised that a covert contractual relationship would require a CHIS, and that private information should be construed widely to include any information not publicly available. This was based on obvious arguments and also, that there was no sanction if a RIPA authorisation was obtained when the courts might ultimately rule that one was unnecessary. Conversely, a failure to have a RIPA authorisation if the courts ruled the other way could lead to the double consequences of firstly, losing any prosecution (as the evidence could well be ruled inadmissible under s78 Police and Criminal Evidence Act 1984 ( PACE ), and secondly, losing a civil Human Rights claim for breach of a person s article 8 rights. This view has been opposed strongly by the Home Office and a number of local authorities who followed the Home Office lead. So what will the position be after 1 st November? The specific rules are different for DS and CHIS, but there is a common requirement for judicial approval. In both cases, after an authorisation has been granted by a Director, Head of Service, Service Manager or equivalent (RIPA Section 30 and Schedule 1), it will not take effect until it has been approved by a single magistrate. Directed Surveillance The ground of necessity has changed (see Article 7A of the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010 S.I. 2010/521 inserted by Article 2(4) of the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources)(Ammendment) Order 2012 S.I. 2012/1500). Instead of for the purpose of preventing or detecting crime or of preventing disorder, the authorising officer (and those remain the same) must be satisfied that the surveillance is necessary (Article 7A(2)) for the purpose of preventing or detecting conduct which (a) constitutes one or more criminal offences, or (b) is, or corresponds to, any conduct which, if it all took place in England and Wales, would constitute one or more criminal offences 2

3 The offence or offences must be (a) an offence which is punishable, whether on summary conviction or on indictment, by a maximum term of at least 6 months of imprisonment, or (b) an offence under (i) section 146 of the Licensing Act 2003(3) (sale of alcohol to children); (ii) section 147 of the Licensing Act 2003 (allowing the sale of alcohol to children); (iii )section 147A of the Licensing Act 2003(4) (persistently selling alcohol to children); (iv) section 7 of the Children and Young Persons Act 1933(5) (sale of tobacco, etc, to persons under eighteen). It can be seen that this will prevent directed surveillance being used for many crimes, including unlawful plying for hire. It is interesting that now the law clearly requires directed surveillance for test purchasing for alcohol and tobacco sales to children, as the exceptions to the 6 months imprisonment requirement. The authorisation must also still be proportionate. Once that authorisation has been completed an application must be made to a single magistrate under s32a RIPA. To bring the DS authorisation into force the magistrate must be satisfied firstly, that at the time of the grant (by the authorising officer), there were reasonable grounds for believing the authorisation was necessary and proportionate, the authorising officer was properly designated, and secondly, that it is still (i.e. at the time of the application) necessary and proportionate. Covert Human Intelligence Sources Although magisterial approval is also required before a CHIS authorisation takes effect, there are no further restrictions on the grounds and for the purpose of preventing or detecting crime or of preventing disorder is still sufficient, provided the additional requirements under s29(7) (handler, controller, source records and juvenile limits) are in place. Again, a CHIS authorisation will not take effect until approved by a magistrate. The requirements are similar to DS, but reflect the greater control over CHIS authorisations. To bring the CHIS authorisation into force (again under s32a) the magistrate must be satisfied firstly, that at the time of the grant (by the authorising officer), there were reasonable grounds for believing the authorisation was necessary and proportionate, the authorising officer was properly designated, and all the additional requirements under s29((7) were in place, and secondly, that it is still 3

4 (i.e. at the time of the application) necessary and proportionate and all s29(7) requirements are still in place. Conclusions These alterations will cause problems for local authorities. Since 2004 covert surveillance for planning and statutory nuisance have been unlawful prior to the service of an enforcement or abatement notice respectively (as breach of planning permission, or causing a statutory nuisance are not crimes). These latest, ill-informed changes will reduce local authorities powers to properly enforce the legislation that is their responsibility even further. It remains to be seen what the attitude of magistrates will be to applications, but the restrictions on use, limiting the use of DS to the upper reaches of local authority offences will cause great difficulties. Local Government as a whole, and councils in particular, need to explain to the citizens of England and Wales that their enforcement powers for low level crime and disorder (which is often the greatest cause for concern amongst the public) have been severely hampered by this legislation. Meanwhile, many criminals will sleep more easily knowing that generally, any surveillance must be overt, easily spotted and evaded. Training Courses Clearly these changes will have an impact on local authority enforcement activity. Details of a half day course in- house are attached. If you would like me to provide this course, or if you have any further queries, please give me a call on or drop me an to james@jamesbutton.co.uk. James Button 19 th September 2012 For further information please contact James Button on or james@jamesbutton.co.uk This bulletin is for information only and does not constitute legal advice. James Button & Co is regulated by the Solicitors Regulation Authority James T H Button, BA, Solicitor, MCIArb, MIoL Principal. 4

5 RIPA The Regulation of Investigatory Powers Act A Half Day Course for Local Authority Officers Facilitated by: James Button BA., Solicitor, MCIArb, MIoL.- Principal, New requirements from 1st November The Regulation of Investigatory Powers Act 2000 is a vitally important and widely misunderstood piece of legislation. From 1st November It is being fundamentally altered in relation to Local Authorities by the Freedoms Act, which will both limits its use and require a court to approve authorisations. Its impact on local authorities is mainly in the fields of enforcement in various areas but also in relation to employee matters e.g. interception and monitoring of s. As with any area of investigations, a failure to comply with the legal requirements may prove fatal to a successful prosecution, so all steps should be taken to ensure compliance. This course is outlines the legislation, placing it in the context of the Human Rights Act 1998, and then examines how it can best be used by local authorities. Course Outline Session 1 Introduction Human Rights Act 1998 issues The RIPA provisions an Overview Protection of Freedoms Act changes Session 2 Use of Directed Surveillance and Covert Human Intelligence Sources Implication for council regulatory services Workshop Session Questions and Answers 7 Devonshire Drive t : Rowsley, Matlock f : : Derbyshire, DE4 2HB e : james@jamesbutton.co.uk w :