Gateshead Council MAY HAVE become the first local authority in the country to successfully obtain Magistrates’ approval for covert surveillance under new laws which came into force on 1st November 2012.
Chapter 2 of Part 2 of the Protection of Freedoms Act 2012 (sections 37 and 38) changes the procedure for the authorisation of local authority surveillance under the Regulation for Investigatory Powers Act 2000 (RIPA). From 1st November, local authorities have been required 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 and accessing communications data.
The Home Office has now published its RIPA Magistrates’ Approval Guidance both for local authorities and the Magistrates’ Court. However until recently, no council had reported a successful application to the Magistrates. We believe, Gateshead Council is the first to do so.
Colin Howey, Senior Trading Standards Officer, explains what they did:
“Like most authorities we were a bit anxious about the new RIPA regime. Whilst we wanted to continue to use covert surveillance techniques in a necessary and proportionate manner, we were concerned about the cost and resource implications of the new Magistrates’ approval process.
Following a full day training workshop we were more confident about what was required. But the new process was still untested.
On 5th November though we obtained what may well be the country’s first judicial approval of a RIPA authorisation. Gateshead Magistrates’ Court approved our use of Directed Surveillance to investigate some serious trading standards offences.
We carefully followed the procedure as set out in the Home Office RIPA Magistrates’ Approval Guidance. We were also careful to ensure the surveillance was necessary on the amended grounds set out in The Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) (Amendment) Order 2012, SI 2012/1500 which also came into force on 1 November 2012. This makes Directed subject to a new Serious Crime Test.
Once we obtained the internal authorisation in the usual way we contacted the Gateshead Magistrates’ Court to arrange a hearing. They asked us to e mail through the original RIPA authorisation form as well as the completed judicial application/order form.
The hearing was attended by the investigating officer and the Council Solicitor. The court was also aware that it was the first RIPA application it had received so a District judge heard the application advised by the Clerk of the Court. The hearing was in private. The judge considered the RIPA authorisation and the judicial application/order form. He asked one or two relevant questions to satisfy himself that the surveillance was necessary and proportionate and then signed the judicial order form
The whole thing was relatively straightforward. It only took the judge fifteen minutes to consider and approve the application.
My tips for those who need to make a similar application are:
1. Train your 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.
2. Designate staff who will be attending the Magistrates Court -This is done under section 223 of the Local Government Act 1972. It is worth giving staff a letter of designation to take to the court when making the application.
3. Contact your local Magistrates Court now to discuss how they will deal with RIPA applications. Like ours they may want documents e mailed to them beforehand. This will also save time on the day.”
Our thanks to Colin Howey and the Regulatory Services Team at Gateshead Council for this fascinating insight. The training provided to Gateshead Council was conducted by Ibrahim Hasan, of Act Now Training.
Did your council achieve a RIPA approval before Gateshead? Use the comment field to let us know.
Act Now can help you prepare for the new RIPA process. We have an update course in December in London. If you would like advice on what needs to be done or customised in house training, please get in touch.
Finally all RIPA authorities need to revise their guidance and policy documents. See our RIPA Policy and Procedures Toolkit.