BBC Policy on the Authorisation and Operation of Detection Equipment under
the Regulation of Investigatory Powers Act 2000
1
Index
Page number
A
Purpose
3
B
Relevant Parties
3
C
Policy
3
1
Authorisation
Granting
Process
3
2
Granting
of
Authorisations
4
3
Relevant Considerations for Granting and
Renewing
Authorisations
4
The Necessity and Proportionality Test
5
4
Redacted under section 31 (“law enforcement”) of the 6
Freedom
of
Information
Act
Redacted under section 31 (“law enforcement”) of the
6
Freedom
of
Information
Act
Redacted under section 31 (“law enforcement”) of the
7
Freedom
of
Information
Act
5
Renewal, Review, Expiry and Cancellation
of
Authorisations
7
Renewal 7
Review
7
Expiry
8
Cancellation
8
6
Administrative
Requirements
9
Operation of Detection Equipment
10
Record
Keeping 11
Monitoring
11
Results of Detection
11
Complaints
12
Appendix A Flowchart of Necessity and Proportionality Test
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A.
Purpose
1
The purpose of this policy is to set out the process involved in granting,
renewing and cancelling authorisations under the Regulation of Investigatory
Powers Act 2000 (the Act) and the Regulation of Investigatory Powers (British
Broadcasting Corporation) Order 2001 (SI 1057) (the Order) as relevant to the
use of detection equipment in relation to television receivers.
2
Authorisations relate to the detection of television receivers which is
surveillance that:
(i)
is carried out by means of apparatus designed or adapted for the
purpose of detecting the installation or use in any residential or other
premises of a television receiver (s27A(1) of the Act as inserted by
article 2 of the Order); and
(ii)
is carried out from outside those premises exclusively for that purpose
(section 27A(1) of the Act as inserted by article 2 of the Order).
3
The conduct that is authorised by an authorisation for the detection of
television receivers is any conduct that:
(i)
consists of the carrying out of the detection of television receivers; and
(ii)
is carried out by the persons described in the authorisation in the
circumstances described in the authorisation (s27A of the Act as
inserted by article 3 of the Order).
4
Authorisation procedures will be consistent with the relevant parts of the Home
Office Code of Practice on Covert Surveillance.
B.
Relevant parties
1
Under the Service Provision Agreement of 7th February 2002, Capita Business
Services Ltd (“Capita”) is the service provider authorised to operate detection
equipment.
C.
Policy
1.
Authorisation granting process
1.1
The authorisation granting process is as follows:
• No detection will be carried out unless it is covered by a current
authorisation.
3
• The BBC requires that Capita provide a satisfactorily completed
authorisation request form and relevant underlying information as set out in
section 6.2 on record keeping below and that all relevant information
supporting the BBC’s assessment should be accurate and up-to-date.
• The request form must set out details of the premises or postcode area
and the ground or grounds as to why the application is believed to be
necessary and proportionate (as set out in section 3 below).
• Capita should present authorisation requests to the BBC a minimum of 4
working days prior to when the authorisation is needed to be effective. The
authorisation comes into effect as soon as it is signed.
2.
Granting of Authorisations
2.1
The granting of Authorisations must be carried out in accordance with s27A of
the Act (as inserted by the article 3 of the Order).1 In all cases, authorisations
should be given sufficient consideration and there should be evidence of this
consideration.
2.2
The Order states that anyone performing the role of Head of Sales or Head of
Marketing within the Television Licensing Revenue Management Unit (TV
Licensing Management Team, TVLMT) or anyone more senior in TVLMT can
grant an authorisation (s27A (2)). In practice this is limited to the Head of
Revenue Management and the Head of Sales and Marketing as the position
fulfilling the roles with power to grant authorisations in accordance with the
Order.2
3.
Relevant considerations for granting and renewing authorisations
3.1
A person shall not grant an authorisation for detection unless he or she
believes that:
(i)
the authorisation is necessary for the purposes of preventing or
detecting crime constituting a television licensing offence or assessing
or collecting sums payable to the BBC pursuant to Part 4 of the
Communications Act 2003; and
(ii)
the conduct that is authorised is proportionate to what is sought to be
achieved by carrying it out (s27A (3)(a)&(b) of the Act as inserted by
article 3 of the Order).
3.2
The necessity and proportionality test must be satisfied before an
authorisation can be granted.
1 Note that section 27A covers who can grant an authorisation, what an authorisation can cover and
requires that detection is necessary and proportionate. Compliance with this policy will ensure
compliance with section 27A.
2 Note that as the roles of head of sales and head of marketing are currently combined there are two
rather than three people who can grant authorisations.
4
The necessity and proportionality test
3.3
The authoriser must believe that the detection activities are necessary and
proportionate. This involves balancing the intrusiveness of detection at the
property (the invasion of privacy of the occupants and anyone else who may
be affected) against the need for the activity in operational terms. The activity
will be neither necessary nor proportionate if the information could have been
obtained by other less intrusive means. All detection activity should be
carefully managed to meet the objective of ascertaining if a television receiver
is being used to receive television programmes and must not be arbitrary or
unfair.
3.4
The below outlines the necessity and proportionality test. This is reproduced
as a flow chart at Appendix A.
3.5
If there has been a previous detection, the results of this Redacted under
section 31 (“law enforcement”) of the Freedom of Information Act should be
taken into account when determining a subsequent attempt is proportionate.
3.6
For the use of detection to be necessary and proportionate:
A.
In all cases, the premises must be unlicensed; AND one of the
conditions in section B must also be met.
B.1
Redacted under section 31 (“law enforcement”) of the Freedom of
Information Act
B.2 Redacted under section 31 (“law enforcement”) of the Freedom of
Information Act
B.3 Redacted under section 31 (“law enforcement”) of the Freedom of
Information Act
B.4 Redacted under section 31 (“law enforcement”) of the Freedom of
Information Act
B.4.1 Redacted under section 31 (“law enforcement”) of the
Freedom of Information Act
B.4.2 Redacted under section 31 (“law enforcement”) of the
Freedom of Information Act
B.4.3
Redacted under section 31 (“law enforcement”) of the
Freedom of Information Act
B.4.4
Redacted under section 31 (“law enforcement”) of the
Freedom of Information Act
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B.4.5 Redacted under section 31 (“law enforcement”) of the
Freedom of Information Act
3.7
Any other factors relevant to the case at hand should also be taken into
account when considering whether detection will be necessary and
proportionate. These factors should be included in the authorisation form (see
‘Record Keeping’ below).
4.
Redacted under section 31 (“law enforcement”) of the Freedom of Information
Act
Redacted under section 31 (“law enforcement”) of the Freedom of Information Act
6
Redacted under section 31 (“law enforcement”) of the Freedom of Information Act
5.
Renewal, Review, Expiry and Cancellation of Authorisations
Renewal
5.1
An authorisation may be renewed at any time before the time at which it
ceases to have effect, by any person who would be entitled to grant a new
authorisation in the same terms (i.e. to renew an authorisation, you must have
the power to have granted a new authorisation on the same terms) (s43 (4) of
the Act).
5.2
The same factors that must be considered when granting an authorisation
must also be considered when renewing an authorisation (s 43(5) of the Act as
modified by article 4 of the Order states that section 27A of the Act (as
inserted by 4 of the Order) applies to renewals as well as the initial granting of
an authorisation).
5.3
In addition, when renewing an authorisation, the following factors must be
included as part of that decision making process:
• the use made of detection equipment in the period since the grant or last
renewal of the authorisation; and
• the tasks given to the detector van equipment during that period and the
information obtained from the conduct or use of the detector van operator
(s43(4)(6)&(7) of the Act).
5.4
In practice, we will consider the above to be satisfied if the results of the
detection were used for the purposes of preventing or detecting crime
constituting a television licensing offence or assessing or collecting sums
payable to the BBC pursuant to Part 4 of the Communications Act. This shows
that our use of detection results is relevant to necessity and proportionality.
Review
5.5
Authorisations should be subject to ongoing review and should be cancelled
as appropriate. Redacted under section 31 (“law enforcement”) of the
Freedom of Information Act
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Expiry
5.6
All authorisations automatically lapse at the end of their specified period and a
maximum period of 8 weeks is legally allowed (s43 of the Act as modified by
article 4 of the Order). All authorisations will be for a period of 8 weeks.
Cancellation
5.7
Section 45(1) of the Act as modified by article 5 of the Order applies in relation
to cancellation of authorisations.
5.8
This process requires that the person who granted or last renewed an
authorisation shall cancel it if the authorisation is one that no longer meets the
requirements of the necessity and proportionality test.
5.9 Once the detection has been carried out, all authorisations should be
cancelled (except those coming to a natural end due to the 8 week period
ending) so that record exists of the practical duration of the authorisation,
particularly in relation to specific detection.
5.10 The BBC requires that Capita will relay to the BBC Field Operations Manager
any instances where the basis on which an authorisation has been granted is
no longer in existence as soon as it becomes aware of them. The Field
Operations Manager will then inform the person who granted that authorisation.
5.11 All authorisations should be cancelled in certain circumstances including but
not limited to:
(i)
Redacted under section 31 (“law enforcement”) of the Freedom of
Information Act
(ii)
where the work is completed more than 5 days before the end of the
authorised period;
(iii)
Redacted under section 31 (“law enforcement”) of the Freedom of
Information Act
(iv)
Redacted under section 31 (“law enforcement”) of the Freedom of
Information Act
(v)
where all target premises within the authorisation have become
licensed;
(vi)
where information becomes available that an offence may no longer be
being committed;
(vii)
where there is a material risk of collateral intrusion; or
(viii) the authorisation ceases to be necessary or proportionate for any
reason.
5.12 The below flowchart outlines the cancellation process:
8
Cancellation flowchart
Authoriser shall
The authorisation may be cancelled by someone appointed
If not available the
cancel in the first
for the purposes of this section:
cancellation is to be
instance (s45(1)
performed by...
RIPA).
(a) nyone performing the role of head of sales or head of
marketing within the Television Licensing Revenue
Management Unit (“the BBC”) (s45(1B)(a) modified by
article 5 which incorporates s27A of the Order);
(b)
ny more senior person in the team; (45(1B)(a) as
modified by article 5 which incorporates s27A(2)(b) of the
Order); or
This authorising person must be appointed
(c) any more senior person in the BBC (45(1B)(b) as
by...
modified by article 5 of the Order).
If no such person has been
appointed for the purpose of this
function...
A new authorisor may be appointed by:
(a) anyone performing the role of head of sales or head of
marketing within the Television Licensing Revenue
Management Unit ('the BBC') (s45(1B)(a) as modified by
article 5 which incorporates s27A of the Order);
The person (if any) within the
BBC holding a position who
(b) any more senior person in the team; (45(1B)(a) modified
has taken over the
by article 5 which incorporates s27A(2)(b) of the Order); or
responsibilities of the person
who is no longer available or
(c) a person holding a more senior position within the wider
the person who has taken
BBC than was held by the person who is not longer
over most of the
available (45(1B)(b) as modified by article 5 of the Order).
responsibilities (45(1A)(b) by
virtue of article 5 which
incorporates).
5.13 Where this is the case the BBC will assess whether there is a person within
the BBC who has taken over that person’s responsibilities and if not, ensure
that a replacement will be appointed in their place (such an appointment to
comply with article 5 of the Order) (s45(1) and as modified by article 5 of the
Order).
6.
Administrative requirements
6.1
An authorisation must be in writing (s43 of the Act as modified by article 4 of
the Order).
6.2
Redacted under section 31 (“law enforcement”) of the Freedom of Information
Act
Operation of detection equipment
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6.3
The operation of detection equipment will be carried out as follows:
• Detection will be carried out in accordance with the authorisation.
• The BBC requires that the operation of detection equipment will be conducted
in accordance with Capita’s work instructions relating to detection equipment
(as approved by the BBC) to ensure that all the relevant legal and policy
requirements are upheld.
• Detection may only be carried out from outside any residential or other
premises to detect installation or use of a television receiver (article 2 of the
Order).3
• Redacted under section 31 (“law enforcement”) of the Freedom of Information
Act4
• Only employees who are authorised in accordance with the Service Provision
Agreement and who have been signed off as fully trained by the Detection
Equipment Manager may operate detection equipment. That training is to be
updated at least every 2 years or more often in case of changes to technology,
law or policy.
• An audit of each party’s records will be carried out by the relevant legal teams
at least once a year.
• Any sensitivities in a particular local community will be taken into account.
• The relevant police force for the area that detection is to carried out will be
notified before detection takes place.
• The detection operator should also take into account the risk of intrusion into
the privacy of persons other than those who are directly the subjects of the
investigation (ie collateral intrusion). 5
Whether detection will impact on
investigations by any other public bodies should also be taken into account.
• Every authorised employee must have signed a declaration relating to privacy
and confidentially of any information gained whilst carrying out detection
before they undertake detection.
Record Keeping
6.4
The BBC requires that a central record is to be kept within the BBC offices of:
3 Pursuant to s48 of RIPA, a 'residential premises' does not include 'any common area to which [the
resident] has or is allowed access in connection with [their] use or occupation'. Detection may
therefore be conducted from common areas (e.g. landings, stairs).
4 Redacted under section 31 (“law enforcement”) of the Freedom of Information Act
5 Note that this is taken from the Home Office Code of Practice.
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(i)
authorisations which have been granted (and any corresponding
renewals or cancellations);
(ii)
authorisations which have been rejected; and
(iii)
any corresponding background information relating to decisions taken.
6.5
Capita must keep its own records of applications submitted and related
information.
6.6
Records should be kept for a minimum period of 6 years. Personal data
collected must be processed in accordance with the Data Protection Act 1998,
Human Rights Act 1998 and data protection policies, procedures and
standards of the BBC.
6.7
The BBC requires that the following supporting documentation must be kept to
enable justification (where necessary):
(i)
A cancellation of authorisation form whenever used;
(ii)
Customer letters or any other correspondence relevant to the
proportionality test; and
(iii)
Any other relevant documentation.
Monitoring
6.8
The BBC requires that analysis of the operation of detection (its
appropriateness/the results etc) is to be undertaken by Capita whilst an
authorisation is active. Any issues, are to be relayed to the Field Operations
Manager who will discuss with the authorising officer the ongoing validity of
the authorisation and who will decide if the authorisation needs to be
cancelled (see ‘Cancellation of Authorisations’ above).
Results of detection
6.9
Results of detection will be used to confirm that someone does not use
television, where this is appropriate, or to inform our next steps in relation to
enforcement (Redacted under section 31 (“law enforcement”) of the Freedom
of Information Act)
6.10 The final results of detection undertaken under an authorisation will be
reported to the Field Operations Manager who will analyse the results in
conjunction with the Head of Sales and Marketing.
Complaints
6.11 Enquiries by the Investigatory Powers Tribunal or a Surveillance
Commissioner (from the Office of the Surveillance Commissioner) regarding
an authorisation granted or detection exercised will be passed to the person
11
carrying out the role of the Head of Revenue Management, or if absent, the
person carrying out the role of Head of Sales and Marketing. The Field
Operations Manager should also be informed.
6.12 Representations made directly to the BBC or its sub-contractors regarding the
use of detection are to be passed to the person carrying out the role of the
Head of Revenue Management, or if absent, the person carrying out the role
of Head of Sales and Marketing.
12
Appendix A – flow chart of necessity and proportionality test
Redacted under section 31 (“law enforcement”) of the Freedom of Information Act
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