Chapter 2 of Part 2 of the Protection of Freedoms Act 2012 (sections 37 and 38) comes into force on 1st November 2012. This changes the procedure for the authorisation of local authority surveillance under the Regulation for Investigatory Powers Act 2000 (RIPA).
From 1st November local authorities will be required to obtain the approval of a Justice of the Peace (JP) 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 JP is to ensure that the correct procedures have been followed and the relevant factors have been taken account of. There is no requirement for the JP to consider either cancellations or internal reviews.For a full explanation of the 2012 Act and the new section 37 and 38 of RIPA read my article.
Home Office Guidance
The Home Office has now published its RIPA Magistrates’ Approval Guidance both for local authorities and the Magistrates’ Court. This guidance is non-statutory but provides advice on how local authorities can best approach these changes in law and the new arrangements that need to be put in place to implement them effectively. It is supplementary to the legislation and to the two statutory Codes of Practice.
The New Magistrates’ Approval Process
- The first stage will be to apply for an internal authorisation in the usual way. Once it has been granted, the local authority will need to contact the local Magistrates Court to arrange a hearing.
- The hearing is a ‘legal proceeding’ and therefore local authority officers need to be formally designated to appear, be sworn in and present evidence or provide information as required by the JP. It is envisaged that the investigating officer will be best suited to fulfill this role. The local authority may consider it appropriate for the SPoC (Single Point of Contact) to attend for applications involving communications data.
- The local authority will provide the JP with a copy of the original RIPA authorisation or notice. This forms the basis of the application to the JP and should contain all information that is relied upon. In addition, the local authority will provide the JP with two copies of a partially completed judicial application/order form (which is included in the Home Office Guidance).
- The hearing will be in private and heard by a single JP who will read and consider the RIPA authorisation or notice and the judicial application/order form. He/she may have questions to clarify points or require additional reassurance on particular matters. The forms and supporting papers must by themselves make the case. It is not sufficient for the local authority to provide oral evidence where this is not reflected or supported in the papers provided.
- The JP will consider whether he or she is satisfied that at the time the authorisation was granted or renewed or the notice was given or renewed, there were reasonable grounds for believing that the authorisation or notice was necessary and proportionate. He/She will also consider whether there continues to be reasonable grounds. In addition they must be satisfied that the person who granted the authorisation or gave the notice was an appropriate designated person within the local authority and the authorisation was made in accordance with any applicable legal restrictions, for example that the crime threshold for directed surveillance has been met (see below).
- The order section of the above mentioned form will be completed by the JP and will be the official record of the his/her decision. The local authority will need to retain a copy of the form after it has been signed by the JP.
The JP may decide to –
- Approve the grant or renewal of an authorisation or notice
The grant or renewal of the RIPA authorisation or notice will then take effect and the local authority may proceed to use the technique in that particular case. The local authority will need to provide a copy of the order to the communications service provider (CSP), via the SPoC (Single Point of Contact), for all CD requests.
- Refuse to approve the grant or renewal of an authorisation or notice
The RIPA authorisation or notice will not take effect and the local authority may not use the technique in that case. Where an application has been refused the local authority may wish to consider the reasons for that refusal. For example, a technical error in the form may be remedied without the local authority going through the internal authorisation process again. The local authority may then wish to reapply for judicial approval once those steps have been taken.
- Refuse to approve the grant or renewal and quash the authorisation or notice
This applies where a Magistrates’ court refuses to approve the grant, giving or renewal of an authorisation or notice and decides to quash the original authorisation or notice.The court must not exercise its power to quash that authorisation or notice unless the applicant has had at least two business days from the date of the refusal in which to make representations.
A local authority may only appeal a JP’s decision on a point of law bymaking an application for judicial review in the High Court. The Investigatory Powers Tribunal (IPT) will continue to investigate complaints by individuals about the use of RIPA techniques by public bodies, including local authorities. If, following a complaint to them, the IPT finds fault with a RIPA authorisation or notice it has the power to quash the JP’s order which approved the grant or renewal of the authorisation or notice. It can also award damages if it believes that an individual’s human rights have been violated by the public authority doing the surveillance.
Local authorities should Act Now to ensure they are ready for the new procedure. They should:
- Train staff – All investigators and authorising officers need to know about the new process. Those who will be attending court need to be trained in completing the new judicial application/order form.
- Designate staff who will be attending the Magistrates Court – The usual procedure would be for local authority Standing Orders to designate certain officers( including SPoCs) for the purpose of presenting RIPA cases to JPs under section 223 of the Local Government Act 1972. A pool of suitable officers could be designated before 1st November and adjusted as appropriate throughout the year.
- Amend the RIPA Policy and Procedures to reflect the new process.
New Serious Crime Test The Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) (Amendment) Order 2012, SI 2012/1500 (“the 2012 Order”), was made on 11 June 2012 and will also come into force on 1 November 2012. Directed Surveillance will be made subject to a new Serious Crime Test. The days of councils authorising surveillance for dog fouling and littering will soon be over. More information here