Download original attachment
(Word document)
This is an HTML version of an attachment to the Freedom of Information request
'policy?'.
(Word document)
CONTENTS PAGE
NB:
The Regulation of Investigatory Powers Act 2000 (`RIPA') refers to `Designated Officers'. For ease of understanding and application within Wycombe District Council, this Policy & Procedures Document refers to `Authorised Officers'. Furthermore, such Officers can only act under RIPA if they have been duly certified by the Council's District Solicitor. For the avoidance of doubt, therefore, all references to duly certified Authorised Officers refer to `Designated Officers' under RIPA.
INTRODUCTION AND KEY MESSAGES
STATUS AND REVIEW OF COVERT SURVEILLANCE
This Policy is based upon the requirements of The Regulation of Investigatory Powers Act 2000 (`RIPA') and the Home Office's Code of Practices on Covert Surveillance and Covert Human Intelligence Sources (covert surveillance would be used only rarely and in exceptional circumstances). The Policy and Procedures will be reviewed at least annually by the Audit Committee.
The authoritative position on RIPA is, of course, the Act itself and any Officer who is unsure about any aspect of this Document should contact, at the earliest possible opportunity, the District Solicitor or the Head of Finance, for advice and assistance. Appropriate training and development will be organised and training given to relevant Authorised Officers and other senior managers.
The Head of Environment, Head of Community Services, Head of Finance and Head of Homes and Housing shall maintain and check the Register of all RIPA authorisations, reviews, renewals, cancellations and rejections for their own services.
For any other service that may need to carry out surveillance the relevant Authorised Officer will be the Head Of Finance (for example Ad Hoc CCTV surveillance requests) and the relevant officers will need to ensure that agreement is sought before any surveillance is carried out. Copies of such authorisations shall be held within the Finance Division on an `ad hoc' authorisations file.
RIPA and this Document are important for the effective and efficient operation of the Council's actions with regard to covert surveillance and Covert Human Intelligence Sources. Such actions can only be carried out for the purposes of preventing crime and disorder.
The District Solicitor will therefore be responsible for carrying out six monthly reviews of the four authorised services to ensure compliance with the policy. Authorised Officers must bring any suggestions for continuous improvement of this Document to the attention of the District Solicitor at the earliest possible opportunity.
In terms of monitoring e-mails and internet usage, it is important to recognise the important interplay and overlaps with the Councils e-mail and internet policies and guidance and the Data Protection Act 1998. RIPA forms should be used where relevant and they will be only relevant where the criteria listed on the Forms are fully met.
If you are in any doubt on RIPA, this Document or the related legislative provisions, please consult the District Solicitor or the Head of Finance at the earliest possible opportunity.
POLICY
COUNCIL POLICY STATEMENT
The Council takes seriously its statutory responsibilities and will, at all times, act in accordance with the law and take necessary and proportionate action in these types of matters.
The District Solicitor is responsible for maintaining a continuous review of The Regulation of Investigatory Powers Act 2000 (RIPA) Policy and submitting any additions or changes necessary via the Audit Committee to the full Council for approval. For administration and operational effectiveness, the District Solicitor is also authorised to add or substitute Officers authorised for the purpose of RIPA.
The Council has resolved that:
all covert surveillance exercises conducted by the Council should comply with the requirements of RIPA;
only the named officers shall be permitted to authorise a covert surveillance exercise; and
this Report be referred to all those Advisory Teams which may carry out covert surveillance.
AUTHORISED OFFICER REPSONSIBILITIES
AUTHORISED OFFICER RESPONSIBILITIES
The Corporate Policy, Procedures and the Forms provided in this Document must be used for Covert Surveillance. Authorised Officers will take personal responsibility for the effective and efficient operation of this policy.
Authorised Officers will undertake suitable training on this policy and RIPA and be duly certified to take action under this Document.
It will be the responsibility of Authorised Officers who have been duly certified to ensure their relevant members of staff are also suitably trained as `Applicants' so as to avoid common mistakes appearing on Forms for RIPA authorisations.
Authorised Officers will also ensure that staff who report to them follow this Corporate Policy & Procedures Document and do not undertake or carry out any form of surveillance without first obtaining the relevant authorisations in compliance with this Document.
Authorised Officers must also pay particular attention to Health and Safety issues that may be raised by any proposed surveillance activity. Under no circumstances, should an Authorised Officer approve any RIPA form unless, and until, they are satisfied the health and safety of Council employees/agents is suitably addressed and/or risks minimised, so far as is possible, and proportionate to/with the surveillance being proposed.
If an Authorised Officer is in any doubt, they should obtain prior guidance on the same from the District Solicitor, the Head of Finance or the Health & Safety Advisor.
Authorised Officers must also ensure that they keep copies of all necessary documentation and make this available for the District Solicitor to undertake any necessary reviews.
DEFINITIONS AND GENERAL INFORMATION
GENERAL INFORMATION ON RIPA
The Human Rights Act 1998 (which brought much of the European Convention on Human Rights and Fundamental Freedom 1950 into UK domestic law) requires the Council, and organisations working on its behalf, pursuant to Article 8 of the European Convention, to respect the private and family life of citizens, their home and correspondence.
The European Convention did not, however, make this an absolute right, but a qualified right. Accordingly, in certain circumstances, the Council may interfere in the citizen's right mentioned above, if such interference is:-
a) in accordance with the law;
b) necessary (as defined in this Document); and
c) proportionate (as defined in this Document).
The Regulation of Investigatory Powers Act 2000 (`RIPA') provides a statutory mechanism (i.e. `in accordance with the law') for authorising covert surveillance and the use of a `covert human intelligence source' (`CHIS') - e.g. undercover agents. It seeks to ensure that any interference with an individual's right under Article 8 of the European Convention is necessary and proportionate. In doing so, RIPA seeks to ensure both the public interest and the human rights of individuals are suitably balanced.
Directly employed Council staff and external agencies working for the Council are covered by the Act for the time they are working for the Council. All external agencies must, therefore, comply with RIPA and the work carried out by agencies on the Council's behalf must be properly authorised by one of the Council's designated Authorised Officers. Authorised Officers are those whose posts appear in Appendix 1 to this Document and, duly added to or substituted by the District Solicitor.
If the correct procedures are not followed, evidence may be disallowed by the courts, a complaint of maladministration could be made to the Ombudsman, and/or the Council could be ordered to pay compensation. Such action would not, of course, promote the good reputation of the Council and will, undoubtedly, be the subject of adverse press and media interest. It is essential, therefore, that all involved with RIPA comply with this Document and any further guidance that may be issued, from time to time, by the District Solicitor.
A flowchart of the procedures to be followed appears at Appendix 2.
WHAT RIPA DOES AND DOES NOT DO
RIPA does:
require prior authorisation of directed surveillance.
prohibit the Council from carrying out intrusive surveillance.
require authorisation of the conduct and use of a CHIS.
require safeguards for the conduct and use of a CHIS.
RIPA does not:
make unlawful conduct which is otherwise lawful.
prejudice or dis-apply any existing powers available to the Council to obtain information by any means not involving conduct that may be authorised under this Act. For example, it does not affect the Council's current powers to obtain information via the DVLA or information from the Land Registry as to the ownership of a property.
If the Authorised Officer or any Applicant is in any doubt, they should ask the District Solicitor or the Head of Finance BEFORE any directed surveillance and/or CHIS is authorised, renewed, cancelled or rejected.
TYPES OF SURVEILLANCE
`Surveillance' includes:
monitoring, observing, listening to persons, watching or following their movements, listening to their conversations and other such activities or communications.
recording anything mentioned above in the course of authorised surveillance.
surveillance, by or with, the assistance of appropriate surveillance device(s).
Surveillance can be overt or covert.
Overt Surveillance
Most of the surveillance carried out by the Council will be done overtly - there will be nothing secretive, clandestine or hidden about it. In many cases, Officers will be behaving in the same way as a normal member of the public (e.g. in the case of most test purchases), and/or will be going about Council business openly (e.g. a market inspector walking through markets).
Similarly, surveillance will be overt if the subject has been told it will happen (e.g. where a noisemaker is warned (preferably in writing) that noise will be recorded if the noise continues, or where an entertainment licence issued subject to conditions, and the licensee is told that officers may visit without notice or identifying themselves to the owner/proprietor to check that the conditions are being met.
Covert Surveillance
Covert Surveillance is carried out in a manner calculated to ensure that the person subject to the surveillance is unaware of it taking place. (Section 26(9)(a) of RIPA).
RIPA regulates two types of covert surveillance, (Directed Surveillance and Intrusive Surveillance) and the use of Covert Human Intelligence Sources (CHIS).
Directed Surveillance
Directed Surveillance is surveillance that is:-
covert; and
not intrusive surveillance (see definition below - the Council must not carry out any intrusive surveillance);
not carried out in an immediate response to events which would otherwise make seeking authorisation under the Act unreasonable, e.g. spotting something suspicious and continuing to observe it; and it is undertaken for the purpose of a specific investigation or operation in a manner likely to obtain private information about an individual (whether or not that person is specifically targeted for purposes of an investigation). (Section 26(10) of RIPA).
Private information in relation to a person includes any information relating to their private and family life, home and correspondence. The fact that covert surveillance occurs in a public place or on business premises does not mean that it cannot result in the obtaining of private information about a person. Prolonged surveillance targeted on a single person will undoubtedly result in the obtaining of private information about them and others that they come into contact, or associate, with.
Similarly, although overt town centre CCTV cameras do not normally require authorisation, if the camera is tasked for a specific purpose, that involves prolonged surveillance on a particular person, authorisation will be required. The way a person runs their business may also reveal information about their private life and the private lives of others.
Confidential information is information held in confidence relating to the physical or mental health or spiritual counseling concerning an individual (whether living or dead) who can be identified from it. Such information, which can include both oral and written communications, is held in confidence if it is held subject to an express or implied undertaking to hold it in confidence or is subject to a restriction on disclosure or an obligation of confidentiality contained in existing legislation. Examples might include consultations between a health professional and a patient, or information from a patient's records.
For the avoidance of doubt, only those Officers designated and certified to be `Authorised Officers' for the purpose of RIPA can authorise `Directed Surveillance' IF, AND ONLY IF, the RIPA authorisation procedures detailed in this Document, are followed. If an Authorised Officer has not been `certified' for the purposes of RIPA, they CANNOT carry out or approve/reject any action set out in this Policy.
6.11 Any covert operation in which confidential information might be required requires authorization by the Chief Executive.
Intrusive Surveillance
This is when surveillance:-
is covert;
relates to residential premises and private vehicles; and
involves the presence of a person in the premises or in the vehicle or is carried out by a surveillance device in the premises/vehicle. Surveillance equipment mounted outside the premises will not be intrusive, unless the device consistently provides information of the same quality and detail as might be expected if they were in the premises/vehicle.
This form of surveillance can be carried out only by police and other law enforcement agencies. Council Officers must not carry out intrusive surveillance.
Examples of different types of Surveillance
Type of Surveillance |
Examples |
Overt |
|
Covert but not requiring prior authorisation |
|
Directed must be RIPA authorised. |
|
Intrusive - Council cannot do this |
|
CONDUCT AND USE OF A COVERT HUMAN INTELLIGENCE SOURCE (CHIS)
Who is a CHIS?
Someone who establishes or maintains a personal or other relationship for the covert purpose of helping to obtain information.
RIPA does not apply in circumstances where members of the public volunteer information to the Council as part of their normal civic duties, or to contact numbers set up to receive information.
What must be authorised?
The Conduct or Use of a CHIS requires prior authorisation.
Conduct of a CHIS = Establishing or maintaining a personal or other relationship with a person for the covert purpose of (or is incidental to) obtaining and passing on information.
Use of a CHIS = Actions inducing, asking or assisting a person to act as a CHIS and the decision to use a CHIS in the first place.
The Council can use CHIS's IF, AND ONLY IF, RIPA procedures, detailed in this Document are followed.
Juvenile Sources
Special safeguards apply to the use or conduct of juvenile sources (i.e. under the age of 18). On no occasion can a child under 16 years of age be authorised to give information against their parents. Only the Chief Executive is duly authorised by the Council to use Juvenile Sources, as there are other onerous requirements for such matters.
Vulnerable Individuals
A Vulnerable Individual is a person who is or may be in need of community care services by reason of mental or other disability, age or illness and who is or may be unable to take care of themself, or unable to protect themself against significant harm or exploitation.
A Vulnerable Individual will only be authorised to act as a source in the most exceptional of circumstances. Only the Chief Executive is authorised by the Council to use Vulnerable Individuals, as there are other onerous requirements for such matters.
Test Purchases
Carrying out test purchases will not (as highlighted above) require the purchaser to establish a relationship with the supplier with the covert purpose of obtaining information and, therefore, the purchaser will not normally be a CHIS. For example, authorisation would not normally be required for test purchases carried out in the ordinary course of business (e.g. walking into a shop and purchasing a product over the counter).
By contrast, developing a relationship with a person in the shop, to obtain information about the seller's suppliers of an illegal product (e.g. illegally imported products will require authorisation as a CHIS. Similarly, using mobile hidden recording devices or CCTV cameras to record what is going on in the shop will require authorisation as directed surveillance. A combined authorisation can be given for a CHIS and also directed surveillance.
Anti-Social Behaviour Activities (e.g. noise, violence, race etc)
Persons who complain about anti-social behaviour, and are asked to keep a diary, will not normally be a CHIS, as they are not required to establish or maintain a relationship for a covert purpose. Recording the level of noise (e.g. the decibel level) will not normally capture private information and, therefore, does not require authorisation.
Recording sound (with a DAT recorder or other similar device) on private premises could constitute intrusive surveillance, unless it is done overtly. For example, it will be possible to record if the noisemaker is warned that this will occur if the level of noise continues. Placing a stationary or mobile video camera outside a building to record anti social behaviour on residential estates will require prior authorisation.
PROCEDURES
AUTHORISATION PROCEDURES
Directed surveillance and the use of a CHIS can only be lawfully carried out if properly authorised, and in strict accordance with the terms of the authorisation.
Appendix 2 provides a flow chart of process from application consideration to recording of information.
Authorised Officers
Forms can only be signed by Authorised Officers who hold a Certificate from the District Solicitor. Authorised posts are listed in Appendix 1. This Appendix will be kept up to date by the District Solicitor, and added to as needs require. The District Solicitor has been duly authorised to add, delete or substitute posts listed in Appendix 1.
Authorisations under RIPA are separate from delegated authority to act under the Council's Scheme of Delegation and internal departmental Schemes of Management. RIPA authorisations are for specific investigations only, and must be renewed or cancelled once the specific surveillance is complete or about to expire. The authorisations do not lapse with time.
Training Records
Proper training will be given, or approved by the District Solicitor before Authorised Officers are certified to sign any RIPA Forms. A certificate of training will be provided to the individual and a Central Register of all those individuals who have undergone training or a one-to-one meeting with the District Solicitor on such matters will be kept by the District Solicitor.
If the District Solicitor feels that an Authorised Officer has not complied fully with the requirements of this Document, or the training provided, the District Solicitor is duly authorised to retract that Officer's certificate and authorisation until they have undertaken further approved training or a one-to-one meeting with the District Solicitor.
Application Forms
Only the approved RIPA forms set out in this Document must be used. Any other forms used will be rejected by the Authorised Officer and/or the District Solicitor.
`A Forms' (Directed Surveillance) - See Appendix 3
Form A 1 Application for Authority for Directed Surveillance
Form A 2 Renewal of Directed Surveillance Authority
Form A 3 Review of Directed Surveillance Authority
Form A 4 Cancellation of Directed Surveillance
`B Forms' (CHIS) - See Appendix 4
Form B 1 Application for Authority for Conduct and Use of a CHIS
Form B 2 Renewal of Conduct and Use of a CHIS
Form B 3 Review of Conduct and Use of a CHIS
Form B 4 Cancellation of Conduct and Use of a CHIS
Grounds for Authorisation
Directed Surveillance (A Forms) or the Conduct and Use of the CHIS (B Forms) can be authorised by the Council only one of ground :-
For the prevention or detection of crime
Assessing the Application Form
Before an Authorised Officer signs a Form, they must:-
(a) Be mindful of this Policy & Procedures Document, the Training provided by the District Solicitor and any other guidance issued, from time to time, by the District Solicitor on such matters;
(b) Satisfy themself that the RIPA authorisation is:-
(i) in accordance with the law;
(ii) necessary in the circumstances of the particular case on one of the grounds mentioned in paragraph 8.10 above; and
(iii) proportionate to what it seeks to achieve.
(c) In assessing whether or not the proposed surveillance is proportionate, consider other appropriate means of gathering the information. This involves balancing the intrusiveness of the use of the source on the target and others who might be affected by it against the need for the source to be used in operational terms. The use of a source will not be proportionate if it is excessive in the circumstances of the case or if the information which is sought could reasonably be obtained by other less intrusive means. The use of a source should be carefully managed to meet the objective in question and sources must not be used in an arbitrary or unfair way.
d) Take into account the risk of intrusion into the privacy of persons other then the specified subject of the surveillance (Collateral Intrusion). Measures must be taken wherever practicable to avoid or minimise (so far as is possible) collateral intrusion and the matter may be an aspect of determining proportionality;
(e) Set a date for review of the authorisation and review on only that date;
(f) Allocate a Unique Reference Number (URN) for the application;
(g) Ensure that any RIPA Departmental Register is duly completed.
(h) Ensure that the authorization is logged on ServiceMail by a dedicated departmental PA, relevant copies are scanned and attached, review and cancellation dates are input.
(i) Ensure that relevant paperwork at all steps in an authorization is made available to the District Solicitor. (see 10.16-10.17 post).
Additional Safeguards when Authorising a CHIS
When authorising the conduct or use of a CHIS, the Authorised Officer must also:-
(a) be satisfied that the conduct and/or use of the CHIS is proportionate to what is sought to be achieved;
(b) be satisfied that appropriate arrangements are in place for the management and oversight of the CHIS and this must address health and safety issues through a risk assessment;
(c) consider the likely degree of intrusion of all those potentially affected;
(d) consider any adverse impact on community confidence that may result from the use or conduct or the information obtained; and
(e) ensure records contain particulars and are not available except on a need to know basis.
Urgent Authorisations
Urgent authorisations should not be necessary. In exceptional circumstances, however, urgent authorisations may be given verbally if the time that would elapse before a written authorisation can be granted would be likely to endanger life or jeopardise the investigation or operation for which the authorisation was being given.
It will not be urgent where the need for authorisation has been neglected or is of the Officer's own making.
Urgent authorisations last for no more than 72 hours. They must be recorded in writing on the standard form as soon as practicable and the extra boxes on the form completed to explain why the authorisation was urgent.
Duration
The Form must be reviewed in the time stated and cancelled once it is no longer needed. The `authorisation' to carry out/conduct the surveillance lasts for a maximum of 3 months (from authorisation) for Directed Surveillance, and 12 months (from authorisation) for a CHIS.
However, whether the surveillance is carried out/conducted or not, in the relevant period, does not mean the `authorisation' is `spent'. In other words, the Forms do not expire. The forms have to be reviewed and/or cancelled (once they are no longer required).
Urgent verbal authorisation, if not already ratified in a written authorisation, will cease to have effect after 72 hours, beginning with the time when the authorisation was granted.
Authorisations can be renewed in writing when the maximum period has expired. The Authorising Officer must consider the matter afresh, including taking into account the benefits of the surveillance to date, and any collateral intrusion that has occurred.
The renewal will begin on the day when the authorisation would have expired. In exceptional circumstances, renewals may be granted verbally in urgent cases and last for a period of 72 hours.
WORKING WITH / THROUGH OTHER AGENCIES
When some other agency has been instructed on behalf of the Council to undertake any action under RIPA, this Document and the Forms in it must be used (as per normal procedure) and the agency advised or kept informed, as necessary, of the various requirements. They must be made aware explicitly what they are authorised to do.
When some other agency (e.g. Police, Customs & Excise, Inland Revenue etc):-
(a) wish to use the Council's resources (e.g. CCTV surveillance systems),that agency must use its own RIPA procedures and, before any Officer agrees to allow the Council's resources to be used for the other agency's purposes, they must obtain a copy of that agency's RIPA form for the record (a copy of which must be put on to a central service file ) and/or relevant extracts from the same which are sufficient for the purposes of protecting the Council and the use of its resources;
(b) wish to use the Council's premises for their own RIPA action, the Officer should, normally, co-operate with the same, unless there are security or other good operational or managerial reasons as to why the Council's premises should not be used for the agency's activities. Suitable insurance or other appropriate indemnities may be sought, if necessary, from the other agency for the Council's co-operation in the agent's RIPA operation. In such cases, however, the Council's own RIPA forms should not be used as the Council is only `assisting' not being `involved' in the RIPA activity of the external agency.
In terms of 9.2 (a), if the Police or other Agency wish to use Council resources for general surveillance, as opposed to specific RIPA operations, an appropriate letter requesting the proposed use, extent of remit, duration, who will be undertaking the general surveillance and the purpose of it must be obtained from the Police or other Agency before any Council resources are made available for the proposed use.
If in doubt, please consult with the District Solicitor or the Head of Finance at the earliest opportunity.
RECORD MANAGEMENT
The Council must keep a detailed record of all authorisations, renewals, cancellations and rejections in Departmental Registers and a Central Register of all authorisation forms will be maintained by the District Solicitor. Also a record must be kept on ServiceMail of each step of the authorization, including reviews, renewals and cancellations. Applicants and Authorised Officers should liaise with the dedicated departmental PA for this purpose.
Records maintained in the Department
The following documents must be retained by the relevant Authorised Officer (or their designated Departmental Co-ordinator) for such purposes.
a copy of the Forms together with any supplementary documentation and notification of the approval given by the Authorising Officer;
a record of the period over which the surveillance has taken place;
the frequency of reviews prescribed by the Authorised Officer;
a record of the result of each review of the authorisation;
a copy of any renewal of an authorisation, together with the supporting documentation submitted when the renewal was requested;
the date and time when any instruction was given by the Authorised Officer;
the Unique Reference Number for the authorisation (URN).
Each form will have a URN. The Departmental Co-ordinators will issue the relevant URN to Applicants. The cross-referencing of each URN takes place within the Forms for audit purposes. Rejected Forms will also have URN's.
Central Register maintained by the District Solicitor
Authorised Officers must forward details of each Form to the District Solicitor for the Central Register, within 1 week of the authorisation, review, renewal, cancellation or rejection. The District Solicitor will monitor these and give appropriate guidance, from time to time, or amend this Document, as necessary.
The Council will retain records for a period of at least three years from the ending of the authorisation. The Office of the Surveillance Commissioners (OSC) can audit/review the Council's policies and procedures, and individual authorisations.
CONCLUSION
CONCLUDING REMARKS
Where there is an interference with the right to respect for private life and family guaranteed under Article 8 of the European Convention on Human Rights, and where there is no other source of lawful authority for the interference, or if it is held not to be necessary or proportionate to the circumstances, the consequences of not obtaining or following the correct authorisation procedure set out in RIPA and this Document, may be that the action (and the evidence obtained) will be held to be unlawful by the Courts pursuant to Section 6 of the Human Rights Act 1998.
Obtaining an authorisation under RIPA and following this Document, will ensure, therefore, that the action is carried out in accordance with the law and subject to stringent safeguards against abuse of anyone's human rights.
Authorised Officers will be suitably trained and they must exercise their minds every time they are asked to sign a Form. They must never sign or rubber stamp Form(s) without thinking about their personal and the Council's responsibilities.
Any boxes not needed on the Form(s) must be clearly marked as being `NOT APPLICABLE', `N/A' or a line put through the same. Great care must also be taken to ensure accurate information is used and is inserted in the correct boxes. Reasons for any refusal of an application must also be kept on the form and the form retained for future audits.
For further advice and assistance on RIPA, please contact the District Solicitor (who is also the Monitoring Officer) or the Head of Finance.
THE REGULATION OF INVESTIGATORY POWERS ACT 2000 (RIPA) POLICY AND PROCEDURES
SIS/Issue 1 Page 1 of 13 April 2004