SURVEILLANCE: opportunities and pitfall

1. SURVEILLANCE: opportunities and pitfall David Matthias QC and Ryan Kohli

2. Covert Surveillance: Powers and Constraints RIPA (Regulation of Investigatory Powers Act) 2000 The Act regulates six investigatory powers • the interception of communications (ss. 1 - 20); • the acquisition of communications data (ss. 21 – 25); • intrusive surveillance (ss. 26 – 48); • directed surveillance (ss.26 – 48) ; • the use of covert human intelligence sources (ss. 26 - 48); • disclosure of encrypted data (ss. 49 – 56)

3. Purpose Ensures that powers to investigate by surveillance of individuals or interception of telecommunications are used with proper regard for human rights. Establishes a new surveillance tribunal to provide a domestic system of redress where it is alleged that public authorities have infringed human rights Defines the powers of public authorities to carry out different types of surveillance and lists the authorities having different powers covered by the Act

4. Aimed at Protecting • Article 8: the right to respect for private and family life; • Article 13: the right to an appropriate remedy

5. (i) Intercepting Communications Will be of little interest to local authorities since only the intelligence services, military personnel and police chiefs may apply to the Secretary of State for an interception warrant Where local authorities are acting in conjunction with the police, unlikely to be “proportionate” to authorise telephone tapping to obtain evidence, for example, of anti social behaviour. Section 1(3) creates civil liability for any interception of a communication by, or with the express or implied consent of, a person having the right to control a private telecommunications system. This applies, for example, to an employer listening in to telephone or email communications of employees. Such conduct is only lawful if it is consented to by the sender or recipient or is otherwise authorised under the Act (s.3(1)).

6. (ii) Communications Data • Chapter II of Part I deals with the lawful acquisition and disclosure of communications data other than in the course of transmission. • “Communications data” includes • (i) any traffic data comprised in or attached to a communication; • (ii) any information which includes none of the contents of the communication; and • (iii) is about the use made by any person of any postal or telecommunications service or other information held or obtained in relation to a customer by a person providing a postal or telecommunications service.

7. Cont’d… This covers everything from addresses on envelopes to lists of telephone calls or emails and their recipients. Covers everything apart from the actual contents of the communication Acquisition and disclosure of such data is deemed lawful pursuant to s. 21(2) if (i) the person acquiring or disclosing it is authorities or required to do so by an authorisation notice or a notice given under the Act and (ii) their conduct is in accordance with the authorisation notice. Local authorities are not included in the list of relevant public authorities for these purposes pursuant to s. 25(1). If local authorities need to obtain such evidence they will have to involve police officers who can obtain appropriate authorisations.

8. (iii) Surveillance Operations Part 2 of the Act (ss. 26 – 48) provides the statutory basis for the authorisation and use by public authorities of covert surveillance, agents, informants and undercover officers (described under the Act as covert human intelligence sources). The Act does not make unauthorised activities unlawful, but the consequence of failing to obtain an authorisation may be that the actions are rendered unlawful by s. 6 of the Human Rights Act 1998

9. Three types of covert surveillance (i) Directed surveillance: covert surveillance which is not intrusive and is undertaken for the purposes of a specific investigation or a specific operation in such a manner as is likely to result in obtaining private information about a person (s. 26(2)). • Any surveillance undertaken which is an immediate response to events or circumstances the nature of which is such that obtaining an authorisation would not be reasonably practicable is excluded from the normal requirements. • Surveillance is covers where it is carried out in a manner calculation to ensure that the person or persons subject to the surveillance are unaware that the surveillance is taking place (s. 26(9)). • This would include, for example, setting up of a covert observation post to gather evidence of anti-social behaviour, trailing benefit fraudsters, CCTV surveillances of particular locations or individuals.

10. Cont’d… (ii) Intrusive surveillance: is covert surveillance that is carried out in relation to anything taking place on any residential premises or in any private vehicle and that involves the presence of an individual on the premises or in the vehicle or is carried out by a surveillance device (s. 26(3)). • There is an exception for surveillance devices which are designed or adapted solely for the purpose of providing information as to the location of a vehicle. • Section 32 provides for the authorisation of intrusive surveillance and limits the grounds on which such authorisations may be granted. • There is no provision whereby local authorities may be authorised to carry out any form of intrusive surveillance.

11. Cont’d… (iii) Covert Human Intelligence Sources: a person falls under this category if he establishes a personal relationship with someone for the covert purpose of either using the relationship to obtain or provide access to any information, or if he covertly discloses information obtained by the use of such a relationship • A trading standards officer posing as a customer in an attempt to purchase counterfeit goods or to discover the source of such goods would be a covert intelligence source • Similarly an individual, employed by the local authority, under the age of 18 entering a shop with the intention of purchasing alcohol for the purpose of policing licensing conditions would be a covert intelligence source.

12. Cont’d… • Sections 28 and 29 govern the use of directed surveillance and of covert human intelligence sources. • Local authorities are listed in Schedule 1 as relevant public authorities for the purposes of both sections. • This means that investigators can be authorised to carry out directed surveillance (s. 28) and to use covert human intelligence sources (s. 29).

13. Practical Issues Authorisation Procedure • In either case (s. 28 or s. 29) authorisation has to be granted by the persons designated for that purpose. These are individuals holding such offices, ranks or positions as are prescribed for the purpose (s. 30). • The prescribed persons for local authorities are Assistance Chief Officers and Officers responsible for the management of investigations (RIPA (Prescription of Offices, Ranks, and Positions) Order 2000 S.I. 2417. • These would include, for example, Chief Trading Standards Officer or Director of Housing • Any investigator wishing to carry out surveillance operations to obtain evidence is required to obtain prior authorisation from a designated person. • It is essential that a written record should be kept of authorisation although no formal requirement under the Act • The record should include the reasons for granting the authorisation and its terms

14. Proportionality and Necessity • Both sections require tests of necessity and proportionality to be applied • Proportionality is tested against the object to be achieved by carrying out the surveillance in question. • Surveillance is “necessary” and an authorisation justified, if it is necessary on any of the grounds set out in s. 28(3) or s. 29(3) which are (a)     in the interests of national security; (b)     for the purpose of preventing or detecting crime or of preventing disorder; (c)     in the interests of the economic well-being of the United Kingdom; (d)     in the interests of public safety; (e)     for the purpose of protecting public health; (f)     for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or (g)     for any purpose (not falling within paragraphs (a) to (f)) which is specified for the purposes of this subsection by an order made by the Secretary of State. • The ground relied on should be recorded as part of the authorisation

15. Covert Human Intelligence Sources: additional requirements • Section 29(5) requires that the designated person must be satisfied of each of the following (a)     that there will at all times be a person holding an office, rank or position with the relevant investigating authority who will have day-to-day responsibility for dealing with the source on behalf of that authority, and for the source's security and welfare; (b)     that there will at all times be another person holding an office, rank or position with the relevant investigating authority who will have general oversight of the use made of the source; (c)     that there will at all times be a person holding an office, rank or position with the relevant investigating authority who will have responsibility for maintaining a record of the use made of the source; (d)     that the records relating to the source that are maintained by the relevant investigating authority will always contain particulars of all such matters (if any) as may be specified for the purposes of this paragraph in regulations made by the Secretary of State; and (e)     that records maintained by the relevant investigating authority that disclose the identity of the source will not be available to persons except to the extent that there is a need for access to them to be made available to those persons.

16. Cont’d… • Therefore, there must be two officers with responsibility for dealing with a human intelligence source and the designated person must be satisfied that their duties are properly described and allocated. • An officer will have responsibility to maintain a record of the use made of the source. • Any records which identify the source should not be available to persons except to the extent that the need for access is necessary.