November 10th, 2009 by Anya Proops QC

The Regulation of Investigatory Powers Act 2000 (RIPA) has attracted a considerable amount of negative publicity over the past couple of years. In no small part, this has been due to public outcry in response media reports of local authorities using their powers under RIPA to engage in activities such as monitoring the use of domestic wheelie bins, recording dog-fouling incidents on camera and carrying out surveillance on families suspected of trying to cheat the school catchment system (see further the discussion of the case of Paton v Poole Borough Council below). Concerns have been expressed by members of the public as well as privacy campaigners that such actions on the part of local authorities constitute abuses of their powers both because the surveillance powers of the state should not be used for trivial purposes and because there has been a failure on the part of the authority to achieve a proper balance between the rights of the state to identify civil and criminal wrongdoing and the individual’s right to have his or her privacy respected. Those concerns resulted in the Home Office commencing a consultation in April 2009 on proposals to introduce new RIPA techniques which would purportedly help ensure that RIPA would only be used when it was necessary and proportionate. Last week, the Home Office published a summary of the responses to those proposals along with an announcement. In the announcement, the view expressed by the Minister for State Security, Counter-Terrorism and Policing, David Hanson, was that the responses to the consultation had been broadly positive. He said that, subject to certain minor amendments, he would now take steps to introduce the proposals as secondary legislation. The announcement suggests that the new legislation will aim to:

  • clarify the test of necessity and proportionality so techniques will not be used for trivial purposes such as investigating dog fouling or people putting bins out a day early
  • raise the rank of the authorising officer for RIPA techniques in local authorities to senior executive at a minimum of ‘Director’ level
  • give elected councillors a role in overseeing the way local authorities use covert
    investigatory techniques
  • require constituents’ communications with MPs on constituency business to be
    treated as confidential information, and therefore subject to authorisation by a
    higher rank of officer
  • treat covert surveillance of legal consultations as ‘intrusive’ rather than ‘directed’
    surveillance, meaning that it can only be carried out by a very limited number of
    public authorities, primarily the police and intelligence agencies, and only with
    independent approval
  • clarify how provisions currently in the Policing and Crime Bill will reduce
    bureaucracy relating to RIPA in police collaborative units comprising two or
    more forces

It also appears that, following a proposal by the Local Government Association, local authorities will need to appoint a single official to be responsible for ensuring that all authorising officers are of an appropriate standard. Notably, the Home Office rejected suggestions that a more radical approach should be adopted, namely removing local authorities from the scope of RIPA altogether.

Coincidentally, the Investigatory Powers Tribunal, chaired by its President, Mummery LJ, was itself hearing a complaint last week brought under s. 65 RIPA that a particular local authority had unlawfully exercised its surveillance powers under RIPA. In Paton v Poole Borough Council, which was heard on 5 and 6 November, the IPT was called upon to decide whether the Poole BC had acted unlawfully under RIPA when it conducted directed surveillance of Ms Paton and her family. The surveillance had been conducted in circumstances where the council suspected that Ms Poole may have been dishonestly trying to abuse the school catchment system by giving a false address when applying for a place for her child at a local school. It was accepted by the council before the IPT that, in fact, its suspicions about Ms Paton had proved to be unfounded. However, the council nonetheless sought to maintain the position before the IPT that the surveillance constituted a necessary, proportionate and, hence, lawful exercise of its powers under RIPA. In advancing this case, it was argued on behalf of the council that there existed no simple means of uncovering fraudulent abuses of the school catchment system that did not involve any invasion of privacy rights. The council was represented by 11KBW’s Ben Hooper.


Rethinking RIPA

April 20th, 2009 by Anya Proops QC

On 17 April 2009, the Home Office launched a consultation on plans to stop investigatory powers being used under the Regulation of Investigatory Powers Act (RIPA) for trivial purposes. It seeks views on questions including: which public authorities should be able to authorise key investigatory techniques, for example, the use of communications data or covert surveillance in public places under RIPA; the purposes for which these investigatory techniques should be used; the option of raising the rank of the local authority employee authorising the use of investigatory techniques to senior executive; and whether elected councillors should play a role in the authorisation. The consultation follows on from a spate of public outcrys about the use of surveillance powers by public authorities, including not least the use of covert cameras by local authorities to watch how residents use their rubbish bins and the use of covert surveillance techniques to track a family which the local authority suspected may be living outside the local school catchment area. The issue of how the investigatory powers available under RIPA should be used is particularly current in view of the recent controversy over techniques used by the police to photograph protesters, many of whom it is argued are merely peaceful demonstrators.