Sam Lincoln looks at recent changes to the RIPA surveillance codes of practice and highlights their relevance to local authorities.
Recently Ibrahim Hasan highlighted on the Act Now blog the revisions of the two codes of practice under Part 2 of the Regulation of Investigatory Powers Act 2000 (RIPA) published on 10 December 2014. Ibrahim urged you to read them but I suspect that it wasn’t at the top of your ‘to do’ list over Christmas! So I’ve done the donkey work for you.
A cursory examination suggests that the revised codes simply implement the amendments to RIPA resulting from the legislation enacted since the last codes were published namely: the Regulation of Investigatory Powers (Extension of Authorisation Provisions: Legal Consultations) Order 2010; to the Protection of Freedoms Act 2012; and the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Relevant Sources) Order 2013. But there are some interesting and important changes.
I approach the subject by addressing each of the two codes. Before I do, it’s worth saying that I compared the existing 2010 codes with the draft codes obtained from the Home Office website available at the time of writing. It may be worth checking to see if further amendments were made before publication. I ignore the frequent amendment resulting from changes to the names or amalgamation of public authorities (for example the formation of Police Scotland and the creation of the National Crime Agency).
If you are a member of a local authority, please don’t persuade yourself that the CHIS Code doesn’t apply to your authority. I think you’ll find that it does!
Covert Surveillance and Property Interference Code
Let’s begin with the Covert Surveillance and Property Interference Code. It might be worth having a copy (printed or online) handy as I’ll refer to relevant paragraph numbers in square brackets ():
[2.18] The first sentence is amended to account for the fact that some legal consultations which might otherwise be Directed Surveillance are now to be authorised as Intrusive Surveillance.
[2.24] Examples 3 and 4 have been amended. I am particularly uncomfortable with the amendment to Example 4 which relegates the requirement for an authorisation from “should be sought” to “should … be considered”. The inference is that planned covert surveillance of an individual suspected of shoplifting depends on the public authority deciding whether the individual has a reasonable expectation of privacy. Assessing what is reasonable and what is assumed by another person is open to challenge. It is because examples can mislead that the Office of Surveillance Commissioners (OSC), during my tenure, advised against the inclusion of examples. For this reason it’s vital that applicants and authorising officers note [1.7].
[2.29] This new paragraph provides important guidance regarding the need to consider whether an authorisation for either Directed Surveillance or a CHIS is required when using the Internet. As usual, it lacks the clarity usually sought by practitioners but it is clear that prior consideration should be given to the need for authorisation; it’s not acceptable to ignore this advice and I urge Senior Responsible Officers to ensure that they alert all public authority staff to its implications.
[2.30] The third bullet point of this paragraph is amended to differentiate between non-verbal and verbal noise.
[3.7] The original examples 2 and 3 are deleted. I suspect that the cause is that neither could be protected by a RIPA authorisation as a result of the 2010 Order. But then again, nor does Example 1!
[3.18] This is a new paragraph and covers the use of third party individuals or organisations (for example private investigators and internet researchers). They are acting as agents of the public authority and the need for relevant authorisation must not be ignored.
[3.22] The deletion of reference to Scottish public authorities suggests that there is no collaboration agreement with any public authorities in Scotland.
[3.30 – 3.33] These new paragraphs cover the changes to local authority authorisations of Directed Surveillance resulting from the Protection of Freedoms Act 2012. (More on the changes here)
[3.35] This paragraph amends the requirement for elected members to consider internal reports submitted on a ‘regular basis’ rather than at least quarterly. I’m personally disappointed that there’s no restriction on the detail of authorisations that elected members are entitled to see to prevent inadvertent compromise.
[4.1] The fourth sentence is amended slightly for grammatical effect it seems. The definition of a Member of Parliament is deleted and placed in the glossary at the back of the code.
[5.18] I recall that the OSC advised that there is no ‘legal’ requirement for any further details to be recorded and would have preferred the code to be more assertive. It’s disappointing that this advice is ignored.
[5.20] It isn’t clear why all of the footnotes relating to this paragraph are deleted.
[6.2] Is amended to include directed surveillance.
[7.8] This paragraph isn’t amended despite, to my knowledge, earlier criticism of the accuracy of its first sentence by the OSC. I am not a lawyer but, if I recall accurately, neither loss nor damage is necessary for there to be property interference. Subsequent analysis of a sample isn’t, of itself, surveillance; it’s the obtaining of the sample itself which may need authorisation.
[8.1] An additional sentence is added directing local authorities to the .gov.uk website for further guidance on the recording of magistrates’ decisions.
[8.2] A final bullet is included requiring local authorities to retain a copy of the Magistrates’ approval order in a centrally retrievable form. (more on the Magistrates’ approval process here)
[8.4] This is a new paragraph advising that it is desirable that relevant records should be retained, if possible, for up to five years.
CHIS Code of Practice
Let me turn now to the revised CHIS Code of Practice.
[2.4] This alerts the reader to the renaming of CHIS previously known as undercover officers to ‘relevant source’. Not a particularly helpful title. Contrary to this paragraph, not all references to undercover officers are amended in this revision of the Code.
[2.12] The final sentence of this paragraph is an important amendment. It alerts public authorities to the fact that the existence of a CHIS is not a choice for a public authority. Whether to authorise the use and conduct of a CHIS is a choice of course, but in my experience too often public authorities wished the problem away. In short, all public authorities must acknowledge that a CHIS may appear at any time and must have procedures in place to manage them in accordance with the law.
[2.14] This new paragraph obliges ‘relevant sources’ to comply with the College of Policing Code of Ethics.
[2.15] This is a new paragraph obliging the authorisation of activity known as ‘legend building’.
[2.16] This seems an unnecessary paragraph considering that types of human sources falling outside the CHIS definition are provided specific attention.
[2.17] This new paragraph introduces the concept of a public volunteer (with examples) in addition to the previously existing concept of a human source with a professional or statutory duty.
[3.12] This paragraph is amended in recognition that the 2013 Order introduced enhanced arrangements.
[3.22] The amendment to this paragraph emphasises that the enhanced arrangement for relevant sources relies on accurate recording of the length of deployment of each relevant source.
[3.26 – 3.27] This new section is specific to the use of CHIS by local authorities and the approval by magistrates. It highlights differences between authorities in England and Wales, Scotland, and Northern Ireland. Similar direction is provided to the need for elected member review but, as I was disappointed with the direction in the other Code, I believe that there is benefit in restricting the detail available to elected members in relation to the use and conduct of a CHIS to prevent compromise.
[4.3] This reminds the reader that ‘relevant sources’ are subject to enhanced arrangements when accessing legally privileged and other confidential information.
[4.31] There is an addition to cover the engagement of a member of a foreign law enforcement agency.
[4.32] The is an important new paragraph covering the considerations necessary to authorise the use and conduct of a CHIS for some online covert activity. It should be read in conjunction with [2.29] of the Covert Surveillance and Property Interference Code of Practice.
[5.10] This new paragraph clarifies the enhanced arrangements for relevant sources.
[5.15] Two sentences are added to this paragraph. The first states that local authorities are no longer able to orally authorise the use of RIPA techniques. The second relates to out of hours arrangements.
[5.16] An amendment to this paragraph introduces additional information to include at review; namely the information obtained from a CHIS and the reasons why executive action is not possible if that is the case (my italics are an addition).
[5.21 and 5.22 – 5.26] These new paragraphs relate to enhanced arrangements for the use and conduct of relevant sources. They provide detail regarding timings and, importantly, the calculation of total or accrued deployment or cumulative authorisation periods.
[5.29] An additional sentence requires an authorising officer to satisfy themselves that all welfare issues are addressed at the time of CHIS cancellation.
[5.30 – 5.31] These new paragraphs relate to the refusal of an Ordinary Surveillance Commissioner to approve a long term authorisation. Importantly, it obliges public authorities to plan for the safe extraction of a relevant source if an authorisation is refused.
[6.6] The addition of a final sentence recognises concerns raised by the OSC in relation to traditional police appointments and their responsibilities as defined by RIPA.
[7.3] Similar to [8.4] of the Covert Surveillance and Property Interference Code revision, this new paragraph (and amendment of [7.1] and [7.6]) recommends that relevant RIPA records should be retained for five years if possible.
[7.6] The addition of a bullet point requires that the decision of an Ordinary Surveillance Commissioner should be retained.
There is one other point I would like to make about the CHIS Code; there is no reference to the fact that the Protection of Freedoms Act 2012 did not restrict the use or conduct of a CHIS to the prevention or detection of crimes not attracting a six month sentence as it did for other types of covert surveillance.
What should you do now?
If you’ve got this far without falling asleep, you are obviously a person who takes RIPA seriously! It would be very helpful therefore if you ensure that your Senior Responsible Officer and all authorising officers are alerted to these amendments. I’m sure the OSC will check that policies are amended accordingly and that extant codes of practice are available and understood.