Office of Surveillance Commissioners (OSC) Annual RIPA Report (2015) – Key Points

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The Chief Surveillance Commissioner, Sir Christopher Rose, published his final annual report on 25th June 2015. A lot of the report is typical of someone in his position who is leaving office, having a few parting moans. Then again, a £56,000 maintenance fee from the Home Office (paragraph 3.3) for a relatively simple website is well worth moaning about)!

The report covers the period from 1st April 2014 to 31st March 2015 and should be read by public authorities, especially councils, who conduct surveillance under Part 2 of the Regulation of Investigatory Powers Act 2000 (RIPA) (Directed Surveillance, Intrusive Surveillance and the deployment of a Covert Human Intelligence Source (CHIS)). It details statistics relating to the use of these tactics and information about how the Office of Surveillance Commissioners (OSC) conducts its oversight role.

Non-law enforcement agencies (including councils) authorised Directed Surveillance on 2207 occasions in the reporting period. The Department for Work and Pensions completed 25% of these. This continues a downward trend over the last few years. Last year there were 4,412 of such authorisations. Much of this downward trend is due to the continued impact 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.

A total of 373 authorisations were presented to a magistrate for approval under The Protection of Freedoms Act 2012 during the reporting period. Just 17 were rejected. The Commissioner continues to be sceptical about the need for the changes saying, “I remain to be convinced of the value of this additional approval procedure which, obviously, promotes delay.”

The Commissioner, just like in his previous report, has expressed concern about the level of RIPA knowledge amongst magistrates:

“I have good reason to believe that training provision for magistrates in relation to RIPA and The Protection of Freedoms Act 2012 has been minimal and several councils have ended up providing this themselves to enable the new procedure to work effectively: this is commendable but not, presumably, what Parliament contemplated.” (Para 5.27)

Social Networks

The Commissioner advises caution when conducting online investigations especially where this involves examining social networking sites. A RIPA authorisation may be required in some cases:

“5.42 Perhaps more than ever, public authorities now make use of the wide availability of details about individuals, groups or locations that are provided on social networking sites and a myriad of other means of open communication between people using the Internet and their mobile communication devices. I repeat my view that just because this material is out in the open, does not render it fair game. The Surveillance Commissioners have provided guidance that certain activities will require authorisation under RIPA or RIP(S)A and this includes repetitive viewing of what are deemed to be “open source” sites for the purpose of intelligence gathering and data collation.”

From the Commissioner’s comments at paragraph 5.44 it seems advisable that councils should have in place a corporate policy and training programme on the use of social media in investigations:

“Many local authorities have not kept pace with these developments. My inspections have continued to find instances where social networking sites have been accessed, albeit with the right intentions for an investigative approach, without any corporate direction, oversight or regulation. This is a matter that every Senior Responsible Officer should ensure is addressed, lest activity is being undertaken that ought to be authorised, to ensure that the right to privacy and matters of collateral intrusion have been adequately considered and staff are not placed at risk by their actions and to ensure that ensuing prosecutions are based upon admissible evidence.”

We have a workshop on investigating E – Crime and Social Networking Sites, which considers all the RIPA implications of such activities.

Common inspection findings

At paragraph 5.47 of the report, the Commissioner lists the main issues that he has commented upon in his inspection reports:

  • Unsubstantiated and brief, or, conversely, excessively detailed intelligence cases
  • Over-formulaic consideration of potential collateral intrusion and an explanation of how this will be managed
  • Limited proportionality arguments by both applicants and Authorising Officers – the four key considerations (identified by my Commissioners and adopted within the Home Office Codes of Practice), if addressed in turn, should provide a suitably reasoned argument
  • More surveillance tactics and equipment authorised at the outset than appear to have been utilised when reviews and cancellations are examined
  • A regurgitation of the original application content at reviews, including a “cut and paste” proportionality entry that fails to address why the activity is still justified, in place of a meaningful update to the Authorising Officer about what has taken place in the intervening period
  • At cancellation, a rarity of meaningful detail for the Authorising Officer about the activity conducted, any collateral intrusion that has occurred, the value of the surveillance and the resultant product; and whether there has been any tangible outcome
  • Similarly, paltry input by Authorising Officers at cancellation as to the outcome and how product must be managed, and any comment about the use or otherwise of all that had been originally argued for and authorised
  • In the case of higher level authorisations for property interference and intrusive surveillance, an over-reliance by Senior Authorising Officers on pre-­prepared entries that alter little from case to case, or at times, regardless of who is acting as the Authorising Officer
  • In those same cases, often poorly articulated personal considerations as to the matters of necessity, collateral intrusion and proportionality; no or few entries at reviews; and little meaningful comment at cancellation
  • On the CHIS documentation, less common, but still encountered, the failure to authorise a CHIS promptly as soon as they have met the criteria; and in many cases (more typically within the non-law enforcement agencies) a failure to recognise or be alive to the possibility that someone may have met those criteria
  • A huge variation in the standard of risk assessments, whereby some provide an excellent “pen picture” of the individual concerned and the associated risks, whilst others can be over-generic and are not timeously updated to enable the Authorising Officer to identify emergent risks
  • Discussions that take place between the Authorising Officer and those charged with the management of the CHIS under Section 29(5) of RIPA are not always captured in an auditable manner for later recall or evidence, though this is starting to improve following our advice
  • As resources become stretched within police forces, the deputy to the person charged with responsibilities for CHIS under Section 29(5)(b) often undertakes those functions: as with an Authorising Officer, this is a responsibility which cannot be shared or delegated

Finally the Commissioner says that during inspections his staff have found that there is “a continuing lack, in many public authorities, of on-going refresher training for officers who may have been trained many years ago, or who have not been eligible for specialised training by dint of career progression or role.”

Those who have an OSC inspection in the Autumn should read Sam Lincoln’s e book which he has written for us entitled “How To Impress An OSC Inspector.” Get in touch if you want a free copy.

Last year new codes of practice under Part 2 of RIPA were introduced.

STOP PRESS… STOP PRESS… STOP PRESS… STOP PRESS…

ONLINE RIPA TRAINING

Looking for an e-learning solution for your RIPA training needs? http://www.actnow.org.uk/content/185

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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. If you want to avoid re inventing the wheel, our RIPA Policy and Procedures Toolkit gives you a standard policy as well as forms (with detailed notes to assist completion) for authorising RIPA and non-RIPA surveillance.

New RIPA Communications Data Code of Practice

In March 2015 a new Code of Practice for the Acquisition and Disclosure of Communications Data by public authorities, including councils, under Part I Chapter 2 of the Regulation of Investigatory Powers Act 2000(RIPA), came into force.  It contains several policy changes, which will require careful consideration.

The key change is the need to ensure the independence of the Designated Person (DP). This is the person within the public authority who has to be satisfied that acquiring the communications data is necessary and proportionate and who signs off the application. Paragraph 3.12 of the new code states that DPs must be independent from operations and investigations when granting authorisations, or giving notices related to those operations.

This policy change was brought about in response to the European Court of Justice (ECJ) Judgment which struck down the Data Retention Directive (2006/24/EC) as the Directive did not include sufficient safeguards as to why and by whom such data may be accessed. The Judgment noted that the Directive contained no safeguards in relation to access to the retained data, including in relation to the independence of the person authorising access to the retained data.

The new code requires public authorities to satisfy the Interception of Communications Commissioner’s Office (IOCCO) that they have sufficient measures in place to ensure the DP’s independence. IOCCO have set out certain guidelines. In a nutshell, a DP must not be directly responsible for the operation or investigation (i.e. they should not have a strategic or tactical influence on the investigation). He/she should be far enough removed from the applicant’s line management chain which will normally mean they are not within the same department or unit. Applicants should not be able to choose who the DP will be on a case by case basis (save for in urgent circumstances). Finally, there should be a defined group of DPs in an organisation i.e. a recognised list defined by role and/or position.

Public authorities will need to ensure that they have a formal procedure setting out the arrangements in place to ensure independence. This will be examined by IOCCO during their inspection. It will also explore how the DPs are selected to consider applications and will audit compliance with the code.

There are exceptions to the rule of independence of DPs set out in the IOCCO Circular of the 1st June 2015 advising public authorities of the changes. These exceptions mainly relate to urgent authorisations and where very small teams of investigators mean that independence would be difficult. These exceptions will not normally apply to local authorities.

In all circumstances where public authorities use DPs who are not independent from an operation or investigation (save for the exceptions) this must be notified to the IOCCO at the next inspection. The details of the public authorities and the reasons such measures are being undertaken may be published and included in the IOCCO report.

What Should You Do Now?

  1. Prepare for an IOCCO inspection. The Commissioner still inspects councils despite their infrequent use. Read here what a typical inspection involves.
  1. Review your current DP authorisations and procedures. You may need to nominate additional (independent) DPs
  1. Review training for DPs. Paragraph 3.8 of the code says:

“Individuals who undertake the role of a designated person must  have current working knowledge of human rights principles and  legislation, specifically those of necessity and proportionality, and how they apply to the acquisition of communications data under Chapter II and this code.”

Do all your DP’s have this knowledge to undertake their role?

Act Now is offering live and interactive webinars for DPs tailored to your organisation. The webinars last for one hour which include an online test. All participants receive a certificate of completion. Get in touch for a quote.

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