Agenda item

Regulation of Investigatory Powers Act 2000 (RIPA) (Agenda Item 7)

Mr Mike Horn (Head of Legal Services) and Mr Graham Parfitt (Legal Executive) to give a presentation on the Regulation of Investigatory Powers Act 2000 and how this has been applied by Breckland.

Minutes:

The Head of Legal Services introduced this item and, to set the Regulation of Investigatory Powers Act (RIPA) into context, read out a letter from Sir Simon Milton, Chairman of the Local Government Association, which had been sent to all Council Leaders on 20 June 2008.

 

Key points from the letter included:

 

  • Recent damaging – and often inaccurate – publicity about councils mis-using surveillance powers under RIPA.  This had given rise to much public debate.

 

  • The RIPA powers are designed to be used in response to residents’ complaints but should only be used when “necessary and proportionate in order to prevent or detect a criminal offence”. 

 

  • The LGA were asking Council Leaders to ensure that their staff are only using these powers after careful and appropriate consideration and under formal authorisation.

 

  • The LGA are keen that such powers of authorisation should be reviewed annually by the appropriate scrutiny panel. 

 

  • It was felt that dog fouling or littering should not be considered as falling within the test of “necessary and proportionate” criteria.

 

  • The LGA and Local Authorities Coordinators of Regulatory Services (LACORS) are working with the Government and other key organisations to clarify some details of the legislation so that it can be used sensibly and appropriately rather than perceived to be abused.

 

The Head of Legal Services explained why and how the Council used the RIPA powers and that the Council had been independently audited on this. 

 

The Legal Executive circulated the following information to Members: 

 

·        A copy of letter from Sir Simon Milton, Chairman of the Local Government Association, addressed to all Council Leaders.

 

·        Breckland Council’s Guidance Notes ref the Regulation of Investigatory Powers Act (RIPA) 2000.    (November 2005 version.)

 

·        A Background Note to the RIPA.

 

·        A copy of the Office of Surveillance Commissioners’ (Lord Colville’s) Inspection Report for Breckland District Council – 4June 2008.   (Restricted document provided for Members of the Panel.)

 

A brief synopsis of the main areas covered by RIPA was given from which it was noted that RIPA provided the legislative framework within which covert surveillance operations must be conducted in order to ensure that investigatory powers were used in accordance with human rights.

 

It was explained that covert surveillance was carried out in a manner calculated to ensure that the person who was the subject of surveillance was unaware that it was, or may be, taking place. 

 

RIPA defined two different “types” of covert surveillance:

 

Ø      Directed surveillance

Ø      Intrusive surveillance

 

The Council had no powers to undertake intrusive surveillance and could use directed surveillance only for the purpose of preventing and detecting crime or of preventing disorder.  (If a directed surveillance operation did not fall within this remit, then the Council may be acting unlawfully under the Human Rights Act (HRA)).

 

The Legal Executive stressed that the Council had a very specific and proper procedure to be followed whenever a surveillance operation was planned.  In the event of any challenges, the Council needed to be able to prove that it had followed all procedures, especially relating to proportionality.  The procedure was explained as follows:-

 

·        Authorisation was the process by which a directed surveillance operation is subject to proper consideration, recording and approval by the officer conducting the investigation and the Director authorised to approve it.

 

·        Proportionality was the fundamental principle embedded in the HRA.  The Council must be able to demonstrate that a surveillance operation justified the level of intrusion of privacy that may occur.

 

·        CHIS – Covert Human Intelligence Source (i.e. using an informant).  (Not used by the Council to date but again use would be subject to the “necessary and proportionate” criteria.)

 

In answer to a question, the Head of Legal Services advised that, as an operational function, Members were not directly involved in the authorisation process.  However, as recommended by the LGA, it was proposed that there should be an annual report to Overview and Scrutiny Commission on the numbers and types of authorised cases handled and their success or otherwise, to ensure proper scrutiny of the function.

 

Breckland’s record of authorised RIPA cases in the period July 2005 to May 2008 had totalled 32, as follows:-

 

Environmental Health

13

Noise and licensing issues

Revenues

11

Benefit fraud

Environmental Services

  5

Fly Tipping

Anti-social behaviour

  1

 

Traveller incursion at

EcoTech

  1

 

Planning

  1

 

 

It was felt that it could be argued that the Council had under-, rather than over-used its RIPA powers over this period – and the LGA had commented that Breckland’s record was “modest”. 

 

The Community Safety Officer gave some working examples by way of illustration, explaining that the team focussed on ‘hot spots’ (areas where there are repeated offences of a serious nature) in collaboration with other key agencies (e.g. from the Police, Fire Departments and Forestry Commission etc).  After issuing appropriate signage and information to local residents, the Council used their RIPA powers by deploying appropriate surveillance equipment in the area to act as a deterrent.

 

A Member queried whether the Council was able to use evidence from privately owned surveillance cameras.   It was confirmed that this was possible, although such evidence would need to be drawn from the individual’s private land and not from any public areas.    Particular care was needed, however, in cases where evidence was submitted by third parties for use as part of a case.

 

The Head of Legal Services summarised the findings from Lord Colville’s Inspection on 4 June 2008 as follows:-

 

·        There had been a vast improvement since the last inspection in June 2005 when the Office of Surveillance Commissioners had asked for an immediate review of the Council’s operations and training needs.

 

·        The Inspector was pleased to see a very much improved Guidance document and confirmed that general procedures were sufficient, bearing in mind that the Council made only modest use of covert surveillance.

 

·        Recommendations from the report highlighted the need for authorising officers to give more attention and detail to their comments when authorising requests (i.e. the authorising officer should be seen to give each request considered thought, rather than just a simple sign-off agreement).

 

·        The report also recommended that a number of small modifications should be made to the Guidance notes.   (The Legal Executive commented that the 2005 Guidance Notes were fundamentally sound but minor improvements and amendments were being made appropriately.)

 

Members were advised that comprehensive training for front line staff and authorising officers had been arranged for September 2008.  There would also be six monthly refresher courses, as appropriate. 

 

Inspections generally took place at three-yearly intervals but could occur sooner.  It was also noted that consideration was being given to the appointment of a second authorising officer. 

 

Members endorsed the need for regular updating of the Guidance documents and it was suggested that updates be made on an annual or bi-annual basis and annotated to show the date of the review, including ‘no change’.

 

In response to a query, the Head of Legal Services explained that if any constituent felt that they had been the victim of “inappropriate surveillance” then they had a statutory right to complain to the Office for Surveillance and the Council would be held to account if it was found to have acted unlawfully.  It was also explained that it was considered inappropriate for ward members to be routinely informed of any operational surveillance activities taking place.

 

The Chairman thanked the officers for what had been an informative discussion. 

 

RESOLVED that the report be noted.

 

RECOMMEND to the Overview and Scrutiny Commission that an annual report on RIPA activity be incorporated into the work programme.