OSC RIPA (Surveillance) Procedures and Guidance: A view from its former editor

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

For the first time, the Office of Surveillance Commissioners (OSC) has made its Procedures and Guidance (P&G) public (in electronic format).

The guidance is essential reading for 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)). The guidance also covers Part III of RIPA and RIP(S)A and to Part III of the Police Act 1997. It does not provide guidance on interception and the obtaining of communications data requiring a RIPA/RIP(S)A warrant.

Why should you care?

For reasons which Steve Morris explains in his blog on the latest OSC report, you’re going to face some form of inspection whether or not you have or intend to conduct covert surveillance; so at least understand how that inspection will be approached.

Also, as the Chief Surveillance Commissioner emphasises, every public authority should have in place policies, procedures and training programmes to ensure that relevant legislation is complied with when a situation arises. The OSC P&G will help you understand when relevant situations arise and how they should be approached.

Failure to recognise when the protection of RIPA/RIP(S)A may be sought or to know how to respond in a manner compliant with legislation – that is claiming ignorance – is no longer an option!

Why does the document exist?

When I first joined the OSC there was a best practice document which I believe had been shared with law enforcement agencies. This, combined with inspection reports, did not appear to meet with unanimous approval.

The Police Service attempted to introduce its own ‘Key Principles’ document which was sufficiently inadequate to attract the comment that “this is why the police should not be left to interpret legislation!”

However, I hope that I am not criticised for saying that the Surveillance Commissioners were not entirely comfortable publishing generic principles; they were more accustomed to making judgments on the facts of specific cases.

It is no coincidence that the following disclaimer, changed little since the first edition, is given prominence: 

“The opinions expressed within the Interpretation Guidance section of this publication are those of the Surveillance Commissioners. The OSC is not a judicial authority. This Guidance simply indicates the way in which the Commissioners would be minded to construe particular statutory provisions. There is no statutory requirement to publish them but they are a response to frequent requests for guidance from public authorities or are matters raised or identified during the inspection process. In the absence of case law, they are the most reliable indicator of likely judicial interpretation. They are the basis upon which inspections will be conducted and performance assessed by the Office of Surveillance Commissioners. Applicants and Authorising Officers should take note of the interpretations when constructing and considering applications and authorisations for the use of covert powers.”

These are the Surveillance Commissioners’ views. It’s rare that a collective interpretation of law is construed by seven ex-Appeal Court judges and three ex-Circuit judges. During my time, issues were examined and discussed at length during meetings with Commissioners and inspectors. You can imagine that, as Editor, I have happy memories of ‘wordsmithing’ each entry to accommodate the wishes of eminent lawyers!

In effect it is the OSC’s ‘party line’ but the disclaimer should be read in conjunction with paragraph 12. It would be wrong to imply that every member of the OSC agrees with every word in the document, so it is necessary to remember that it is guidance which may easily be altered by facts specific to each case. This is why you’ll find phraseology such as “is capable of being construed as [a type of] surveillance” rather than the definitive “is [a type of] surveillance”. Each Surveillance Commissioner is able to exercise his own judgment when approving authorisations.

RIPA and RIP(S)A are permissive and discretionary powers; the onus is on an authorising officer to decide whether or not to grant an authorisation for covert conduct. Assistant Surveillance Commissioners and inspectors cannot dictate. The aim of the document is to provide a level of consistency in approach from the OSC.

Finally, it is not the task of the OSC to make law; its task is to interpret the law as it is written, not as the Commissioners or others may prefer it. So don’t accuse the OSC of promoting covert conduct which you don’t agree with!

Why publication was resisted?

Partly because of conflict with the Police Service in relation to the ‘Key Principles’ document, and in response to concerns that operational techniques would be exposed, it was decided that the P&G should not be made available to the public. My repeated requests to identify any operational technique in the document that hadn’t already been disclosed by enthusiastic senior investigating officers resulted in no applications. But it was decided that we relied on practitioner transparency which required trust that we would not inhibit legitimate techniques.

When serving in the OSC and today, I am sometimes disappointed with the understanding of some trainers and the quality of their training. Too often legislation, codes of practice and the P&G are regurgitated or misused for commercial gain without improving knowledge or practitioner performance. Sometimes challenging the P&G was used as enticement to attendance or purchase; we were concerned that alternative opinions undermined confidence in the OSC.

I can avow the time and effort that goes into the formulation of this guidance; there is good reason why phrases are used. To protect copyright, to avoid misinterpretation and to prevent others gaining financially from the immense effort of the OSC were, I confess, causes of reticence to provide the document to the public.

In hindsight I believe my advice to the Chief Surveillance Commissioner to prevent public disclosure was misguided. Copies leaked to trainers and OSC silence allowed the media and campaigners to inadequately interpret legislation and its use.

Discussions relating to the Investigatory Powers Bill indicate that the need for regulators to transparently demonstrate how they hold public authorities to account has been recognised. Making the P&G public is a positive step but I am surprised that it is free! It‘s a publication worthy of a charge.

Comparison

For the remainder of this post I compare the July 2016 version with its predecessor of December 2014. There are many notes useful to practitioners. If you have not read it at least once, you should. Numbers in parenthesis are the relevant note number.

Part 1 – Procedures

Part 1 Section 1 provides detail of how to contact the OSC and matters relating to inspection process and reporting. Part 1 Section 2 provides detail in relation to Commissioner approvals, which apply mainly to law enforcement agencies.

[7-8] Disclosure of inspection reports. This is not new but worth reiterating. There is no requirement – as stated in the Codes of Practice – to notify the OSC of an intention to publicly disclose an inspection report, nor does the OSC promote or discourage the practice. The decision whether or not to publish rests entirely with the chief officer of the public authority inspected.

Part 2 – Guidance

[75] “I am satisfied” and “I believe” Again, not new but important. Too often authorising officers provide insufficient rationale to support their judgment; relying on the details provided by the applicant. This guidance cautions against lax authorisations. The heading indicates an unexplained difference between RIPA and RIP(S)A which use different requirements. This is likely to be complicated further if the terms in the draft IP Bill are enacted. That Bill currently requires a designated officer to “consider”. I may write another article on the significance of these differences.

[87] Duration of authorisations and renewals. Added clarification to ensure that electronic systems date/time algorithms do not have the effect of “losing a day” of authorised conduct. This amendment probably reflects the law enforcement agencies tendency to use electronic systems to create and process applications and authorisations. A useful audit is provided by date stamps and automatically generated data which cannot be altered. There have obviously been instances where automatic dates are not accurate. This amendment indicates how an OSC inspector will regard the inaccuracy but it’s a hint that authorising officers should ensure that dates are accurate.

[93-98] Persons, groups, associates and vehicles. These notes provide guidance in to assist public authorities amend authorisations when details are not known at the outset. The final sentence of Note [96] is amended:

Deleted: “The AO should set parameters to limit surveillance and use review to avoid “mission creep”.

Inserted: “The AO should guide the operational commanders by setting contextual parameters for the use of the “link” approach.” (i.e. where a possible link has previously been identified between individuals to the common criminal purpose being identified.)

There is a new note [97].

“The Authorising Officer should be updated when it is planned to deploy equipment or surveillance against a freshly identified subject before such deployment is made, to enable him to consider whether this is within the terms of his original authorisation, necessary, proportionate and that any collateral intrusion (or interference) has been taken into account; alternatively, where operational demands make it impracticable for the Authorising Officer to be updated immediately, as soon as reasonably practicable thereafter. This is to ensure that the decision to deploy further devices or surveillance remains with the Authorising Officer and is not delegate to, or assumed by, another, such as the operational commander. Such reviews should be pertinent and can be done outwith the usual formal monthly written review process, provided that the details of the Authorising Officer’s decisions are recorded contemporaneously and formally updated at the next due review. Where the terms of an authorisation do not extend to interference to other subjects (criminal associates) or their property then a fresh authorisation, using the urgency provisions if necessary, will need to be sought.” (My emphasis)

[222-229] Authorisation of undercover officers (UCOs). Note [226] is amended to enable additional UCOs to be authorised by way of review but indicates that every UCO must be authorised for the correct duration. This reflects the reality that it is frequently necessary to introduce additional UCOs to an investigation (for example to support a legend). Often the identity of additional UCOs will not be known at the outset. Rather than insist on the added bureaucracy of a new authorisation, the Commissioners have indicated that amendment by review (providing the terms of the original authorisation allow it) will not be criticised.

[289] Covert Surveillance of Social Network Sites (SNS). I advise that all members of local authorities read paragraph 289 in entirety as it’s the conduct most likely to introduce RIPA/RIP(S)A compliance issues. It remains my view that too few public authorities recognise (either deliberately or in ignorance) that the ‘less intrusive’ means that have resulted in decreased authorisations may be the result of not authorising internet investigations on the belief that ‘open source’ or publicly available mitigates RIPA/RIP(S)A consideration. This note provides the OSC’s guidance. Sub-note [289.3] is amended as shown in bold type:

“It is not unlawful for a member of a public authority to set up a false identity but it is inadvisable for a member of a public authority to do so for a covert purpose without an authorisation for directed surveillance when private information is likely to be obtained. The SRO should be satisfied that there is a process in place to ensure compliance with the legislation. Using photographs of other persons without their permission to support the false identity infringes other laws.”

See also Ibrahim Hasan’ blog post on RIPA and social networks.

 

Conclusion

I hope that this background is useful. I hope that my reticence to persuade the former Chief Surveillance Commissioner to make the P&G available to the public is proven to be misguided. Publishing the document is a very positive move in my opinion and is a useful indicator that the Commissioners have come to terms with the need to be public-facing. I applaud the decision.

Disclaimer: Sam Lincoln is a former Chief Surveillance Inspector with the OSC. In that capacity he introduced the OSC Procedures and Guidance and edited it from 2006 to 2013. The opinions expressed in this post are his alone; he does not represent the OSC and OSC endorsement is neither sought nor implied.

Sam has designed our RIPA E-Learning Package which is an interactive online learning tool, ideal for those who need a RIPA refresher before an OSC inspection.

 

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