RIPA policy version 5.pdf

REGULATION OF INVESTIGATORY POWERS ACT 2003

COUNCIL PROCEDURES

CONTENTS

1.  Introduction

2.  Benefits of Obtaining Authorisation

3.  Directed Surveillance

4.  Covert Human Intelligence Sources

5.  Authorisation Process

6.  Activities Incapable of Authorisation

7.  Confidential Material

8.  Joint Operations

9.  Handling & Disclosure of Product

10. Use of Electronic Surveillance Devices

11. Codes of Practice

12. Scrutiny & Tribunal

Appendix 1 – List of Authorising Officers

1. Introduction

1.1 The Regulation of Investigatory Powers Act 2000 (RIPA) regulates covert
investigations by a number of bodies, including local authorities. It was
introduced to ensure that individuals’ rights are protected whilst also ensuring
that law enforcement and security agencies have the powers they need to do
their job effectively.

1.2 Carmarthenshire County Council (the Council) is therefore included within the
RIPA framework with regard to the authorisation of both Directed
Surveillance (DS) and the use of Covert Human Intelligence Sources (CHIS).

1.3 The purpose of these Procedures is to set out the scope of RIPA, the
circumstances where it applies, and the procedures to be followed when
implementing it.

1.4 Regard has been had to the Codes of Practice issued by the Home Office, and
Guidance and Good/Bad Practice notes issued by the Office of the
Surveillance Commissioner (OSC) in preparing these procedures.

1.5 Subject to the provisions of Section 6 of this document, any covert
surveillance activity carried out by or on behalf of the Council MUST be
authorised one of the properly trained Authorising Officers listed in Appendix
2, and dealt with in accordance with Sections 5 or 10 of this document.

1.6 Individual Investigating Officers and Authorising Officers should familiarise
themselves with this procedure document, the Codes of Practice issued by the
Home Office, and such Guidance as is issued by the OSC from time to time.

1.7 Deciding when an authorisation is required is a question of judgement.
However, if an investigating officer is in any doubt, he/she should
immediately seek legal advice. As a basic rule however, it is always safer to
seek the appropriate authorisation.

1.8 The Senior Officer within the Council with strategic responsibility for RIPA
issues is Linda Rees-Jones, Head of Administration & Law

1.9 The ‘Gate-keeping’ Officer, with responsibility for vetting all RIPA
applications and maintaining the Central register is Robert Edgecombe, Legal
Services Manager.

1.10
The elected member responsible for reviewing the authority’s use of
RIPA and setting the authority’s RIPA policy each year is Councillor P A
Palmer.

ALL OFFICERS MUST NOTE THAT THE COUNCIL MAY ONLY
AUTHORISE COVERT SURVEILLANCE FOR THE PURPOSE OF
PREVENTING OR DETECTING CRIME AND DISORDER.

2.  BENEFITS OF OBTAINING AUTHORISATION

2.1 RIPA states that where an authorisation is obtained, and the covert
surveillance activity is conducted in accordance with that authorisation, then
the activity will be lawful for all purposes.

2.2 Where an authorisation is not obtained, then there is a risk that any evidence
obtained as a result could be ruled as inadmissible in subsequent legal
proceedings.

2.3 Furthermore, unauthorised covert surveillance activity is more likely to result
in a breach of an individual’s human rights, leading to a compensation claim
against the Council.

3.  DIRECTED SURVEILLANCE

3.1 Surveillance includes;

3.1.1  The monitoring, observing or listening to persons, their movements, their
conversations or their other activities or communication.

3.1.2  The recording of anything so monitored, observed or listened to in the
course of surveillance.

3.1.3  The surveillance by or with the assistance of a surveillance device.

3.1.4  Directed Surveillance does NOT occur where covert recording of
suspected noise nuisance takes place and the recording device is calibrated
to record only excessive noise levels

3.2 Surveillance is ‘Directed’ for the purposes of RIPA if it is covert (but not
intrusive) and is undertaken;

3.2.1  For the purposes of a specific investigation or operation

3.2.2  In such a manner as is likely to result in the obtaining of private
information about a person (whether or not one is specifically identified
for the purposes of the investigation or operation); and

3.2.3  Otherwise than by an immediate response to events or circumstances the
nature of which is such that it would not be reasonably practicable for an
authorisation to be sought for the carrying out of the surveillance.

3.2.4  OFFICERS SHOULD NOTE THAT THE SURVEILLANCE OF AN
INDIVIDUAL’S ACTIVITIES AND/OR CONVERSATIONS IN A
PUBLIC PLACE MAY AMOUNT TO THE OBTAINING OF PRIVATE
INFORMATION AND THEREFORE FALLS WITHIN THE SCOPE
OF PARAGRAPH 3.2.2 ABOVE (OSC Procedures & Guidance note,
December 2008 paragraphs 149 & 150)

3.3 Surveillance is ‘covert’ if it is carried out in a manner calculated to ensure that
the target is unaware it is or may be taking place. Therefore surveillance of an
individual using city centre CCTV cameras could still require RIPA
authorisations if the cameras are targeted on that individual and he/she is
unaware that they are being watched.

3.4 Covert surveillance becomes ‘intrusive’ if;

3.4.1  It is carried out in relation to anything taking place on any residential
premises or in any private vehicle, and
3.4.2  Involves the presence of an individual on the premises or in the vehicle or
is carried out by means of a surveillance device on the premises/vehicle, or
3.4.3   Is carried out by means of a surveillance device in relation to anything
taking place on any residential premises or in any private vehicle but is
carried out without that device being on the premises or vehicle, where the
device is such that it consistently provides information of the same quality
and detail as might be expected to be obtained from a device actually
present on the premises or vehicle.

THE COUNCIL HAS NO POWER TO AUTHORISE INTRUSIVE
SURVEILLANCE. IF INVESTIGATING OFFICERS HAVE ANY
CONCERNS REGARDING THIS THEY SHOULD IMMEDIATELY SEEK
LEGAL ADVICE.

3.5 Surveillance is for the purposes of a specific investigation or operation if it is
targeted in a pre-planned way at an individual or group of individuals, or a
particular location or series of locations.

3.6 Surveillance will not require authorisation if it is by way of an immediate
response to an event or circumstances where it is not reasonably practicable to
get an authorisation. For example, CCTV operators will not require an
authorisation to monitor the activities of a suspected shoplifter immediately
upon that person being reported to the operator. However CCTV operators
should be aware that were they are requested to monitor such a person for
more than 30 minutes, authorisation will be required.

4.  COVERT HUMAN INTELLIGENCE SOURCES (CHIS)

4.1 A person is a CHIS if;

4.1.1  He/she establishes or maintains a personal or other relationship with a
person for the covert purpose of facilitating the doing of anything falling
within the paragraphs immediately below.
4.1.2  He/she covertly uses such a relationship to obtain information or provide
access to any information to another person, or
4.1.3  He/she covertly discloses information obtained by the use of such a
relationship or as a consequence of the existence of such a relationship.

4.2 A purpose is covert in this context if the relationship is conducted in a manner
that is calculated to ensure that one of the parties is unaware of that purpose.

4.3 It is unclear whether RIPA only applies to private information in this context.
Council policy therefore is to treat all such activities as being in need of
authorisation whether or not the information sought is private information.

4.4 When considering whether to make use of a CHIS, investigating officers
MUST consult with the gate-keeping officer before taking any action, in order
to ensure that the relevant Home Office Code of Practice is complied with.
Where use is made of a CHIS, his/her designated handler must be a properly
trained officer, who may not necessarily be based within the same
department/section as the investigating officer.

4.5 ONLY THE CHIEF EXECUTIVE MAY AUTHORISE THE USE OF A
JUVENILE CHIS.

5.  AUTHORISATION PROCESS

5.1 Applications must normally be in writing, using the standard forms contained
in Appendix 1.

5.2 ONLY WHERE THE APPLICATION IS URGENT MAY MATTERS BE
DEALT WITH ORALLY. IN SUCH CASES OFFICERS MUST FOLLOW
THE CODES OF PRACTICE ISSUED BY THE HOME OFFICE.

5.3 Although it is possible to combine two or more applications in the same form,
this practice is generally to be avoided. One situation where it may be
appropriate is during a covert test purchase exercise involving more than one
premise. In such cases investigating officers should contact the gate-keeping
officer to discuss the operation before completing the forms.

5.4 Once the appropriate application forms are completed, they should be
submitted by email to the gate-keeping officer.

5.5 The gate-keeping officer will then vet the application, enter in onto the Central
Register and allocate a unique central reference number. The application may
also be copied to the Chief Executive.

5.6  The gate-keeping officer may recommend changes to the application, or agree
to it being submitted unaltered to a designated authorising officer.

5.7 Where an application must be authorised by the Chief Executive (in the case
of a juvenile CHIS or cases involving confidential information), the gate-
keeping officer will arrange a meeting between the investigating officer, gate-
keeping officer and Chief Executive.

5.8 In all other cases the investigating officer shall arrange to meet one of the
authorising officers listed in Appendix 2 to discuss the application.

5.9 When determining whether or not to grant an authorisation, Authorising
Officers must have regard to;

5.9.1  Whether what is proposed is necessary for preventing/detecting
crime/disorder,
5.9.2  Whether what is proposed is proportionate to the aim of the action
5.9.3  Whether the proposed action is likely to result in collateral intrusion into
the private lives of third parties, and if it is, whether all reasonable steps
are being taken to minimise that risk.
5.9.4  In the case of applications to authorise the use of a CHIS, whether all the
requirements of Paragraphs 4.14 to 4.16 of the Code of Practice relating to
the authorisation of a CHIS issued by the Home Office are complied with.

5.10
If an application is refused, the reasons for refusal shall be endorsed on
the application

5.11
If an application is granted, the authorising officer must specify;

5.11.1  The scope of the authorisation
5.11.2  The duration of the authorisation
5.11.3  The date (not more than 28 days) for review of the authorisation.

5.12
Irrespective of the outcome of the application, the investigating officer
must immediately forward a copy of the completed application together with
the authorising officers decision, to the gate-keeping officer, who will make
the appropriate entries in the Central Register, and place the copy
application/decision in the Central Record.

5.13
If, upon initial review of the authorisation, the authorising officer
determines that it should remain in effect, reviews must take place every 28
days during the life of the authorisation. The investigating officer must keep a
record the results of any review and communicate them to the gate-keeping
officer for entry in the Central Register.

5.14
Once an authorising officer determines that an authorisation is no
longer necessary it must be cancelled immediately.

5.15
Once the operation to which the authorisation relates is concluded, or
the activity authorised ceases, then the investigating officer must immediately
meet the authorising officer to cancel the authorisation.

5.16
Whenever an authorisation is cancelled, the authorising officer must
endorse the cancellation with his/her views as to the value of the authorised
activity.

5.17
Whenever an authorisation is cancelled, a copy of that cancellation
must be sent to the gate-keeping officer for it to be placed in the Central
Record, and appropriate entries to be made in the Central Register.

5.18
Unless previously cancelled, an authorisation will last as follows;

5.18.1  Written authorisation for Directed Surveillance – 3 months
5.18.2  Urgent oral authorisation for Directed Surveillance – 72 hours
5.18.3  Written authorisation for use of a CHIS – 12 months
5.18.4  Urgent oral authorisation for use of a CHIS – 72 hours

5.19
Immediately upon an authorisation ceasing to have effect in
accordance with paragraph 5.18, the investigating officer and authorising
officer shall meet to formally cancel the authorisation in accordance with
paragraphs 5.14 to 5.17. (In order to assist officers, it is recommended that
the reviews referred to in paragraph 5.13 be scheduled to coincide with the
scheduled termination date of the authorisation.)

5.20
If shortly before an authorisation ceases to have effect, the authorising
officer is satisfied that the grounds for renewing the authorisation are met,
then he/she may renew the authorisation. (Before renewing an authorisation,
authorising officers must have regard to the appropriate sections of the
relevant code of practice issued by the Home Office)

5.21
An authorisation may be renewed for;

5.21.1  In the case of a written renewal of a Directed Surveillance authorisation
3 months.
5.21.2  In the case of an urgent oral renewal of a directed surveillance
authorisation – 72 hours.
5.21.3  In the case of a written renewal of a CHIS authorisation – 12 months.
5.21.4  In the case of an urgent oral renewals of a CHIS authorisation – 72 hours.

5.22
An authorisation may be renewed more than once.

5.23
All applications for renewal of an authorisation must record;

5.23.1  In the case of directed surveillance all matters set out in paragraph 4.26 of
the relevant Code of Practice issued by the Home Office
5.23.2  In the case of CHIS, all matters set out in paragraph 4.24 of the relevant
Code of Practice issued by the Home Office.

5.24
Where an authorisation is renewed, it must continue to be reviewed in
accordance with paragraph 5.13 above.

5.25
Where an authorisation is renewed, a copy of the renewal must be sent
to the gate-keeping officer and placed in the Central Record and appropriate
entries made in the Central Register.

WHERE AN APPLICATION IS GRANTED OR RENEWED THE
INVESTIGATING OFFICER MUST ENSURE THAT ALL OFFICERS
TAKING PART IN THE COVERT SURVEILLANCE ACTIVITY HAVE AN
OPPORTUNITY TO READ THE AUTHORISATION AND FAMILIARISE
THEMSELVES WITH ITS TERMS AND RESTRICTIONS BEFORE THE
OPERATION COMMENCES.

6.  ACTIVITIES INCAPABLE OF AUTHORISATION

6.1 RIPA only applies to ‘core functions’ of the authority, as defined by the
Investigatory Powers Tribunal in C v The Police (2006). It will also be
apparent from Sections 1 to 5 above that certain instances of covert
surveillance carried of by the authority are incapable of being authorised under
RIPA. Examples of this include;
6.1.1  Surveillance carried out as part of a planning investigation prior to issuing
an enforcement notice
6.1.2  Surveillance carried out as part of a public health investigation prior to
issuing an abatement notice. (But see paragraph 3.1.3 above)
6.1.3  Surveillance carried out as part of an internal disciplinary investigation
6.1.4  Surveillance carried out in support of a defence of a personal injury claim

6.2 None of these examples can be authorised as directed surveillance under
RIPA, although all are capable of being justifiable cases of interference with
an individuals human rights on the grounds that they are necessary and in the
interests of public safety, the economic well-being of the country, for the
protection of health or morals or for the protection of rights and freedoms of
others. In these cases, although the authority cannot rely upon RIPA for
protection, steps should be taken to ensure the authority is acting lawfully.

6.3 Wherever an officer wishes to consider carrying out directed surveillance,
which cannot be justified on crime and disorder grounds, but may fall within
the scope of paragraph 6.2, he/she must contact the gate-keeping officer for
advice.

6.4 Where it is considered that the proposed surveillance activity is justifiable
under paragraph 6.2, the officer will complete the RIPA application forms in
the usual way, substituting the appropriate justification from paragraph 6.2 for
the words ‘prevent/detect crime & disorder’ in Section 3 of the application
form.

6.5 The officer will then email the application to the gate-keeping officer, who
will enter it into the Central Register and forward it to the Chief Executive.

6.6 The proposed activity contained within the application can only take
place if approved by the Chief Executive or in his absence, by another
designated authorising officer

6.7 THE USE OF A CHIS CANNOT TAKE PLACE UNDER THE TERMS
OF THIS SECTION.

6.8 Any activity permitted under this section will subsequently be subject to the
provisions of Section 5 above, and must be reviewed, renewed and cancelled
in the same way. All such reviews, renewals and cancellations must be
reported to the gate-keeping officer in accordance with Section 5.

7.  CONFIDENTIAL MATERIAL

7.1 Confidential material such as personal medical or spiritual information,
confidential journalistic information or information subject to legal privilege is
particularly sensitive and is subject to additional safeguards.

7.2 In cases where such information may be obtained, an investigator must seek
immediate legal advice.

7.3 Only the Chief Executive may authorise surveillance activity, which may
result in confidential information being obtained.

7.4 Any application for an authorisation, which is likely to result in the acquisition
of confidential material MUST include an assessment of how likely it is that
confidential material will be acquired.

7.5 Special care should be taken where the target of the investigation is likely to
be involved in handling confidential material. Such applications should only
be considered in exceptional and compelling circumstances and with full
regard to the proportionality issues this raises.

7.6 The following general principles apply to confidential material acquired under
such authorisations;

7.6.1  Officers handling material from such operations should be alert to
anything that may fall within the definition of confidential material. Where
there is any doubt, immediate legal advice should be sought.
7.6.2  Confidential material should not be retained or copied unless it is
necessary for a specified purpose.
7.6.3  Confidential material should only be disseminated, after legal advice has
been sought, where it is necessary for a specified purpose.
7.6.4  The retention and/or dissemination of confidential material should be
accompanied by a clear warning of its confidential nature.
7.6.5  Confidential material should be destroyed as soon as it is no longer
necessary to retain it for a specified purpose.

8.  JOINT OPERATIONS

8.1 Where officers are engaged in operations with other public authorities, any
covert activity must be authorised either in accordance with this document, or
by an appropriate officer employed by the other authority.

8.2 Officers should always ensure that when operating under an authorisation
issued by another authority, that the authorising officer has the power to issue
that authorisation, and that the authorisation covers the scope of the proposed
activity.

8.3 Officers are advised to request a copy of the relevant authorisation, or at least
obtain a written note of the scope, duration and conditions of the authorised
activity.

8.4 Officers should also have regard to any other protocols specifically dealing
with joint operations.

9.  HANDLING & DISCLOSURE OF PRODUCT

9.1 Officers are reminded of the rules relating to the retention and destruction of
confidential material set out in section 7 above.

9.2 Authorising Officers must ensure compliance with the appropriate data
protection requirements and the relevant codes of practice in the handling and
storage of material.

9.3 Where material is obtained by surveillance, which is wholly unrelated to a
criminal or other investigation or to any person who is the subject of such an
investigation, and there is no reason to believe it will be relevant to future
criminal or civil proceedings, it should be destroyed immediately.

9.4 Consideration as to whether or not unrelated material should be destroyed is
the responsibility of the Authorising Officer.

9.5  RIPA does not prevent material properly obtained in one investigation being
used in another investigation. However, the use of any covertly obtained
material outside the council and/or for purposes other than for which the
surveillance was authorised, should only be sanctioned in exceptional
cases.

10. USE OF SURVEILLANCE DEVICES

10.1
Surveillance devices include, static and mobile CCTV cameras, covert
surveillance cameras, noise monitoring/recording devices, and any other
mechanical and/or recording devices used for surveillance purposes.

10.2
Static CCTV cameras include ‘Town Centre’ cameras operated from
Police Stations under the control of Council staff, as well as fixed security
cameras located in council buildings.

10.3
Fixed security cameras, which are incapable of being remotely
controlled, do not require RIPA authorisation provided their existence and
purpose is made clear to the public through appropriate signage.

10.4
‘Town Centre’ and mobile CCTV cameras will not ordinarily require
RIPA authorisation where their existence and use is also made clear by
signage. However, where camera operators are requested to control the
cameras so as to target specific individuals or locations, then the following
rules apply;

10.4.1  Where the request is made by way of an immediate response to an incident
or intelligence received, no RIPA authorisation is required, subject to the
proviso in paragraph 10.4.2 below.
10.4.2  Where a request is made in accordance with paragraph 10.4.1 above and
the surveillance lasts, or is likely to last for 30minutes or more, RIPA
authorisation must be obtained.
10.4.3  Where the request is made as part of a pre-planned operation or
investigation, RIPA authorisation must be obtained.

10.5
The use of ‘Town Centre’ and mobile CCTV cameras in the context of
police operations is covered in more detail in a separate protocol.

10.6
Camera operators should refuse to comply with any requests for
surveillance activity unless they are satisfied;

10.6.1  That a RIPA authorisation is unnecessary, or
10.6.2  That an authorisation has been obtained and the scope, duration and
limitations of the permitted activity have been confirmed in writing.

10.7
The Council maintains other covert surveillance equipment the control
of which is regulated by a separate protocol.

10.8
It is recognised that many departments maintain conventional cameras
and mobile phone cameras for use by staff on a regular basis. Staff must be
reminded;

10.8.1  That the covert use of such cameras (ie where the ‘target’ is not aware that
he/she is being photographed) may require RIPA authorisation.
10.8.2  As a general rule, unless the photograph is being taken as an immediate
response to an unexpected incident, RIPA authorisation should be sought.

10.9
Use of noise monitoring/recording equipment is also covered by RIPA,
where the equipment records actual noise, as opposed to just noise levels.

10.10
Where a target is made aware that noise monitoring may be taking
place, then RIPA authorisation is not required. However;

10.10.1Officers should take care to ensure that, when informing the target, that the
identity of the complainant is not revealed.
10.10.2Where there is a risk that the complainant’s identity could become known
as a result of the target being informed of the proposed noise monitoring, it
is advisable that RIPA authorisation be obtained.

11. CODES OF PRACTICE

11.1
The Home Office has issued Codes of Practice relating both to
Directed Surveillance and the use of CHIS. Copies of these codes are available
via the Home Office, or Office of the Surveillance Commissioner (OSC)
websites, or can be obtained from the gate-keeping officer.

11.2
Whilst these codes do not have the force of law, they represent best
practice, and adherence to them will give the authority a better chance of
opposing any allegation that RIPA and/or the Human Rights Act has been
breached.

11.3
Investigating and Authorising Officers should ensure that when dealing
with applications, regard is had to these codes.

11.4
The Office of the Surveillance Commissioner has also publishes useful
guidance, copies of which can be obtained from the gate-keeping officer.

SCRUNTINY AND TRIBUNAL

11.5
In order to ‘police’ RIPA, the council will be subject to an inspection
by an OSC inspector every 2 years. The inspector will;
11.5.1  Examine the Central Register
11.5.2  Examine authorisations, renewals and cancellations
11.5.3  Question officers regarding their implementation of the legislation.
11.5.4  Report to the Chief Executive regarding his/her findings

11.6
A Tribunal has also been set up to deal with complaints made under
RIPA. The tribunal may quash or cancel any authorisation and order the
destruction of any record or information obtained as a result of such an
authorisation.

12.3However, the greatest scrutiny of the council’s actions under RIPA will
come from the courts;
12.3.1 Both the Magistrates Court and Crown Court may exclude evidence
obtained as a result of covert surveillance.
12.2.2 The County Court may when dealing with a case (eg Housing possession)
take into account any activity, which amounts to a breach of Human Rights and
exclude all or part of the case accordingly.
12.3.3 The High Court may rule that the Council has acted in breach of an
individual’s Human Rights as a result of undertaking covert surveillance, and
award compensation as a result

12.4 The Gate-Keeping officer will provide the following to the elected member
responsible for reviewing the authority’s RIPA activities;

12.4.1  A quarterly report detailing the extent of the authority’s RIPA activities
during the previous quarter
12.4.2  An annual report setting the RIPA policy for the next 12 months.

APPENDIX 1 – LIST OF AUTHORISING OFFICERS

Name     Post

Mark James Chief Executive

Philip Davies    Head of Public Protection

Robin Staines    Head of Housing

Mike Rogers Head of Policy (Technical Services Department)

Eifion Bowen    Head of Planning

John Gravelle Revenue Services Manager

Robert Edgecombe    Acting Legal Services Manager