GLD Vacancies

Freedom fighting

The Protection of Freedoms Bill represents "an unprecedented rolling back of the power of the state", according to Deputy Prime Minister Nick Clegg. Ibrahim Hasan looks at the key provisions for local authorities, including amendments to RIPA and a new regime for CCTV.

The long awaited Protection of Freedoms Bill is currently going through Parliament. If passed in its current form, it will curtail local authorities' powers to carry out surveillance under the Regulation of Investigatory Powers Act 2000 (RIPA) and to deploy CCTV cameras. The Bill implements Home Office recommendations contained in a review of counter-terrorism and security powers, published on 26 January 2011 (see my article in Local Government Lawyer Restraining RIPA).

Magistrates’ Role

Chapter 2 of Part 2 of the Bill (clause 37 and 38) amends RIPA so as to require local authorities to obtain the approval of a magistrate for the use of any one of the three covert investigatory techniques available to them under RIPA namely Directed Surveillance, the deployment of a Covert Human Intelligence Source (CHIS) and accessing communications data. An approval is also required if an authorisation to use such techniques is being renewed. In each case, the role of the magistrate is to ensure that the correct procedures have been followed and the appropriate factors have been taken account of. The new provisions allow the magistrate, on refusing an approval of an authorisation, to quash that authorisation.

Communications Data

Chapter 2 of Part 1 of RIPA allows local authorities, as well as others, to access communications data about an individual from any Communications Service Provider (CSP) (e.g. a telephone or mobile phone service provider).

A new section 23A will be added to Chapter 2. An authorisation or notice to obtain communications data from a CSP shall not take effect until a magistrate has made an order approving it. The magistrate must be satisfied that:

  • There were reasonable grounds for the Designated Person (the person authorising the obtaining of the data) within the local authority to believe that obtaining communications data was necessary and proportionate and that there remain reasonable grounds for believing so.
  • The Designated Person was of the correct seniority within the local authority in accordance with the Regulation of Investigatory Powers (Communications Data) Order 2010 (SI 2010/480) i.e. Director, Head of Service, Service Manager or equivalent.
  • The granting or renewal of the application was only for the prescribed type of communications data to be acquired for the prescribed purpose as set out in the above Order (i.e. subscriber and service use data – e.g. mobile phone subscriber information and itemized call records – to be acquired only for the purpose of preventing or detecting crime or preventing disorder)
  • Any other conditions set out in an order made by the Secretary of State under Chapter 2 of Part 1 of RIPA are satisfied (none at present).

Directed Surveillance and CHIS

Clause 38 of the Bill makes similar provision for magistrate approval of local authority authorisations for the use of Directed Surveillance and the deployment of a CHIS. It does this by adding a new section 32A to Part 2 of RIPA.

Directed Surveillance is often conducted by local authorities to, amongst other things, investigate a benefit fraud or to collect evidence of anti-social behaviour. Typical methods include covertly following people, covertly taking photographs of them and using hidden cameras to record their movements. Typical examples of a CHIS, in a local authority context, include an informant regularly disclosing information about benefit fraudsters working in a factory or a witness on a housing estate disclosing information about anti social behaviour.

Once again the internal authorisation for such surveillance methods is not to take effect until such time (if any) as a magistrate has made an order approving it (section 32A(2)). Approval can only be given if the magistrate is satisfied that:

(a) There were reasonable grounds for the authorising officer approving the application to believe that the Directed Surveillance or deployment of a CHIS was necessary and proportionate and that there remain reasonable grounds for believing so.

(b) The authorising officer was of the correct seniority within the organisation i.e. a Director, Head of Service, Service Manager or equivalent as per the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010 (SI 2010/521) (“the 2010 Order”).

(c) The granting of the authorisation was for the prescribed purpose, as set out in the 2010 Order i.e. preventing or detecting crime or preventing disorder.

(d) Any other conditions set out in any order under Part 2 of RIPA are satisfied (none at present).

In addition to the above, where the authorisation is for the deployment of a CHIS, the magistrate must be satisfied that:

(e) The provisions of section 29(5) have been complied with. This requires the local authority to ensure that there are officers in place to carry out roles relating to the handling and management of the CHIS as well as the keeping of records (as per the Regulation of Investigatory Powers (Source Records) Regulations 2000 (SI 2000/2725)).

(f) Where the CHIS is under 16 or 18 years of age, the requirements of the Regulation of Investigatory Powers (Juveniles) Order 2000 (SI 2000/2793) have been satisfied. This sets out rules about parental consent, meetings, risk assessments and the duration of the authorisation. Note that the authorisation of such persons to act as a CHIS must come from the Chief Executive.

(g) Where the application is for the renewal of a CHIS authorisation, a review has been carried out by the local authority and the magistrate has considered the results of the review.

The new provisions make it clear that the authorising officer is not required to apply in person and there is no need to give notice to either the subject of the authorisation or their legal representatives (Section 23B (2) and 32B(2)). This reflects the covert nature of the exercise of the investigatory powers under RIPA.

Directed Surveillance and the Serious Offence Test

The Home Office Review also recommended that where local authorities wish to use RIPA to authorise Directed Surveillance, this should be confined to cases where the offence under investigation carries a custodial sentence of six months or more. This recommendation is to be put into effect by an order to made under section 30(3)(b) of RIPA.

The new RIPA codes of practice, which will accompany the changes to the local authority surveillance regime, will spell out precisely how the magistrate approval process will work. The changes will have a profound impact on local authority investigators especially in Trading Standards, Environmental Health, Benefit Fraud and Licensing teams. The added scrutiny of authorisation forms by magistrates will increase the importance of staff training and guidance on completing such forms correctly.

The New CCTV Regime

Chapter 1 of Part 2 of the Bill makes provision for the further regulation of surveillance camera systems. These are defined as Closed Circuit Television (CCTV), Automatic Number Plate Recognition (ANPR) and other surveillance camera technology operated by the police and local authorities.

Clause 29 requires the Secretary of State to prepare a code of practice in relation to such systems. This must include guidance in relation to the development or use of such systems, and the use and processing of information derived from them. It may also include provisions about:

  • considerations as to whether to use surveillance camera systems
  • types of systems or apparatus
  • technical standards for systems or apparatus
  • locations for systems or apparatus
  • the publication of information about systems or apparatus
  • standards applicable to persons using or maintaining systems or apparatus
  • standards applicable to persons using or processing information obtained by virtue of systems
  • access to, or disclosure of, information so obtained
  • procedures for complaints or consultation.

Clause 33 provides that the police and local authorities must have regard to the Code if they operate or intend to operate any surveillance camera systems covered by the Code. The Secretary of State may by order designate other bodies as being required to have regard to the Code. Failure to adhere to the Code will not in itself render an organisation liable to legal proceedings, but the Code is admissible in civil or criminal proceedings. The Code could also be enforced by way of judicial review in the High Court.

On 1 March 2011, the Home Office launched a consultation on the contents of the Code. The deadline for responses is 25 May 2011. The consultation paper can be downloaded from the Home Office website.

Of equal note is the creation of a new Surveillance Camera Commissioner (clause 34) who will encourage compliance with the Code, review its operation, and make annual reports about the Code and its operation to Parliament.

The CCTV provisions in the Protection of Freedoms Bill add a completely new layer of control over the use of CCTV by local authorities and the police. One has to question whether they are necessary, especially at a time of huge public sector budget cuts. CCTV is already subject to controls under both the Data Protection Act (DPA) and (if covert) Part 2 of RIPA. There is already a CCTV Code under the DPA which is enforced by the Information Commissioner. Will the new code and Commissioner take precedence? Furthermore in the age of You Tube, Flickr and Facebook, some believe that the Government should have at last focused equal attention to regulating private individuals’ and the private sector’s use of CCTV and video technology.

Ibrahim Hasan is a solicitor and director of Act Now Training (www.actnow.org.uk).