Judicial Approval for Council Surveillance

The Commencement Order for, amongst other things, the RIPA provisions within the Protection of Freedoms Act 2012 has now been made. This means that from 1st November 2012 all local authority surveillance will require judicial approval.

Chapter 2 of Part 2 of the 2012 Act (sections 37 and 38) amends the Regulation of Investigatory Powers Act 2000 (RIPA) so as to require local authorities to obtain the approval of a Magistrate for the use of any one of the three covert investigatory techniques available to them under RIPA namely Directed Surveillance, the deployment of a Covert Human Intelligence Source (CHIS) and accessing communications data. An approval is also required if an authorisation to use such techniques is being renewed. In each case, the role of the Magistrate is to ensure that the correct procedures have been followed and the relevant factors have been taken account of. The new provisions allow the Magistrate, on refusing an approval of an authorisation, to quash that authorisation.

For a full explanation of the new provisions click here

Note that 1st November also sees Directed Surveillance being made subject to a new Serious Crime Test. More information here

These provisions will be examined in our forthcoming RIPA update workshops. We also have a new RIPA Policy and Procedure Toolkit which will help.

Please get in touch if you would like customised in house training  on any aspects of the Act.

UPDATE (13/9/12)

The New Criminal Procedure Rules 2012 (coming into force on 1st October) provide more details about the procedure for seeking magistrates’ approval:

http://www.legislation.gov.uk/uksi/2012/1726/part/6/crossheading/6/made

We are still waiting though for the detailed guidance from the Home Office.

The 2012 Surveillance Commissioner Report

By Steve Morris

The Office of Surveillance Commissioners published its 2012 annual report (covering the period from 1st April 2011 to 31st March 2012) on 14th July 2011. The report details statistics relating to the use of Part 2 of RIPA by public authorities and information about how OSC conducts its oversight role. It highlights some important issues such as:

  • Collaborative Working – Departments, teams and various units within several authorities are pooling resources but then not obtaining authorisations and keeping records in relation to a proper designated authority (Sec 5.7)
  • There is a lack of awareness of what constitutes a CHIS and there is a likelihood that public authorities might have unauthorised CHIS activity being undertaken (Sec 5.14)
  • Authorising Officers are not making adequate provision for destruction of product that is collateral intrusion or of no value to the operation (Sec 5.16)
  • Some ‘open source’ internet research is being conducted which may actually meet the criteria of Directed Surveillance and therefore require authorisation (Sec 5.17)
  • Where there is an invasion of privacy and RIPA does not apply, due to all conditions not being met, then the OSC recommends use of the authorisation mechanism where Article 8 issues (privacy) should be considered (Sec 5.22)
  • ACPO (Association of Chief Police Officers) is reviewing the authorisation forms and it will also report on form redesign (Sec 5.25)

Our RIPA Courses already address these issues. Future courses are also being revised to take account of other recently announced changes affecting local authorities:

  • The Protection of Freedoms Act 2012 which received Royal Assent on 1st May 2012. The RIPA provisions in this Act are yet to come into force but when they do they will require local authorities to have all their RIPA surveillance authorisations (i.e. Directed Surveillance, CHIS and the acquisition of Communications Data) approved by a Magistrate before they take effect (Read more here).
  • From 1st November 2012, local authorities will face severe restrictions upon the grounds for which they can authorise Directed Surveillance under the RIPA. The days of local authorities being able to use surveillance powers to tackle dog fouling and littering offences will soon be over (Read more here).
  • The Communications Data Bill and the changes it will make to the communications data access regime (currently under Part 1 of Chapter 2 of RIPA)

Steve Morris is a former police officer who delivers our RIPA Courses as well as a course on Internet Investigations

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