On 10th December 2014 revised versions of the two codes of practice under Part 2 of the Regulation of Investigatory Powers Act 2000 (RIPA) will come into force. This will be as a result of two statutory instruments made on 19th November 2014 namely; the Regulation of Investigatory Powers (Covert Surveillance and Property Interference: Code of Practice) Order 2014 and the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Code of Practice) Order 2014.
The revised codes are essential reading for those public authorities, especially councils, who conduct surveillance (Directed Surveillance, Intrusive Surveillance and the deployment of a Covert Human Intelligence Source (CHIS)). They take account of the changes, which took effect on 1st November 2012; namely magistrates’ approval for council surveillance and a new six-month threshold test for Directed Surveillance.
CCTV is a hot topic. Following complaints by Big Brother Watch, the Information Commissioner’s Office (ICO) has taken enforcement action involving both number plate recognition cameras and cameras recording people’s conversations in taxis. On 15th October 2014, the ICO published its 44 page code of practice on surveillance cameras and personal information. Revised paragraph 2.27 of the covert surveillance code draws attention to the importance of complying with the Data Protection Act and consequently the ICO code as well as the Surveillance Camera Code, when using overt CCTV cameras for surveillance. The Surveillance Camera Code, came into force last year and was made pursuant to the Protection of Freedoms Act 2012 (PoFA). It governs the use of surveillance camera systems including CCTV and Automatic Number Plate Recognition (ANPR) and applies to local authorities and policing authorities in England and Wales.
As regards the legal effects of the Surveillance Camera Code:
“A failure on the part of any person to act in accordance with any provision of this code does not of itself make that person liable to criminal or civil proceedings. This code is, however, admissible in evidence in criminal or civil proceedings, and a court or tribunal may take into account a failure by a relevant authority to have regard to the code in determining a question in any such proceedings” (paragraph 1.16 of the PoFA code).
The Surveillance Camera Commissioner has been appointed by the Home Secretary but has no enforcement or inspection powers unlike the ICO. He “should consider how best to ensure that relevant authorities are aware of their duty to have regard for the Code and how best to encourage its voluntary adoption by other operators of surveillance camera systems” (paragraph 5.3 of the PoFA code). (see our workshop on the Surveillance Camera Code)
The Chief Surveillance Commissioner in his annual report, published on 4th September 2014, drew special attention to the use of the Internet for investigations, particularly involving social networking sites. He suggests that a RIPA authorisation may be required for some online investigations. (See our detailed blog post on the OSC report.) Paragraph 2.29 of the revised covert surveillance code states:
“2.29 The use of the internet may be required to gather information prior to and/or during an operation, which may amount to directed surveillance. Whenever a public authority intends to use the internet as part of an investigation, they must first consider whether the proposed activity is likely to interfere with a person’s Article 8 rights, including the effect of any collateral intrusion. Any activity likely to interfere with an individual’s Article 8 rights should only be used when necessary and proportionate to meet the objectives of a specific case. Where it is considered that private information is likely to be obtained, an authorisation (combined or separate) must be sought as set out elsewhere in this Code. Where an investigator may need to communicate covertly online, for example contacting individuals using social media websites, a CHIS authorisation should be considered.”
Paragraph 4.32 of the revised CHIS code states:
“4.32 The use of the internet may be required to gather information prior to and/ or during a CHIS operation, which may amount to directed surveillance. Alternatively the CHIS may need to communicate online, for example this may involve contacting individuals using social media websites. Whenever a public authority intends to use the internet as part of an investigation, they must first consider whether the proposed activity is likely to interfere with a person’s Article 8 rights, including the effect of any collateral intrusion. Any activity likely to interfere with an individual’s Article 8 rights should only be used when necessary and proportionate to meet the objectives of a specific case. Where it is considered that private information is likely to be obtained, an authorisation (combined or separate) must be sought as set out elsewhere in this Code.”
We have a workshop on investigating E – Crime and Social Networking Sites, which considers all the RIPA implications of such activities.
On the keeping of records both revised RIPA codes state that, although records are only required to be retained for at least three years, it is desirable, if possible, to retain records for up to five years. Finally both revisions confirm that local authorities are no longer able to orally authorise the use of RIPA techniques and that “Out of hours arrangements should be in place with HMCS to deal with out of hours applications.”
These are the main changes to the RIPA codes. We have prepared a detailed document setting out all the changes. Please e-mail us (firstname.lastname@example.org) if you would like a copy.
Act Now will be revising its RIPA Policy and Procedures Toolkit to take account of the RIPA codes. The toolkit gives you a standard policy as well as forms (with detailed notes to assist completion) for authorising RIPA and non-RIPA surveillance. Now is the time to consider refresher training for RIPA investigators and authorisers. We have a full program of RIPA Courses and can also deliver these at your premises, tailored to the audience.