Chief Legal Officer:

Mirza F.N. Ahmad MBA LLM Barrister

Ingleby House,

11-14 Cannon Street,

Birmingham B2 5EN


BRIEFING NOTE : REGULATION OF INVESTIGATORY POWERS ACT 2000


Introduction

The Regulation Of Investigatory Powers Act 2000 (RIPA) aims to ensure that the various investigatory powers available to public bodies are only exercised in accordance with the requirements of the Human Rights Act 1998 (HRA).

Part II of RIPA is concerned with covert surveillance. It sets out the purposes for which the powers may be used, what any material obtained can be used for and who may authorise an investigation.

However it only provides a defence against allegations that the HRA has been breached. In certain circumstances obligations under other legislation will need to be considered.

RIPA came into force on 25 September 2000.

Human Rights

Article 8 of HRA provides: -

  1. Everyone has the right to respect for his private and family life, his home and his correspondence.
  2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The requirement in Article 8(2) that any interference be in accordance with the law means that a legal framework must be in place to regulate the interference. The European Court of Human Rights has in the past criticised the UK for lacking an appropriate framework in the area of surveillance. RIPA is intended to remedy this.

Covert Surveillance

RIPA is only concerned with covert surveillance. It has no application to CCTV cameras used for the general monitoring of public areas.

However it does apply to both human and mechanical forms of covert surveillance.

Section 26(9) states that surveillance is covert: -

if and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place.

RIPA envisages three different classes of surveillance, each of which is subject to different authorisation regimes. The classes are: -

Directed Surveillance

"Directed surveillance" is covert surveillance undertaken in relation to a specific investigation or a specific operation which is likely to result in the obtaining of private information about a person.

Directed surveillance does not include any type of covert surveillance in residential premises or in private vehicles. This is defined as "intrusive surveillance" and can not be authorised by local authority officers.

Authorisations for directed surveillance cannot, under Section 28, be granted unless the specific criteria in Section 28(2) are satisfied, namely, that the person granting the authorisation believes that: -

  1. the authorisation is necessary on grounds falling within subsection (3); and
  2. the authorised activity is proportionate to what is sought to be achieved by it.

The specific grounds in Section 28(3) are that the authorisation is necessary: -

  1. in the interests of national security;
  2. for the purpose of preventing or detecting crime or of preventing disorder;
  3. in the interests of the economic wellbeing of the UK;
  4. in the interests of public safety;
  5. for the purpose of protecting public health;
  6. for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or
  7. for the purposes which may be specified by the Secretary of State.

"Proportionate" means that the nature of the surveillance exercise is reasonable in the circumstances. It equates to the maxim against "using a sledgehammer to crack a nut".

 

Covert Human Intelligence Source

A person is a covert human intelligence source under Section 26(8) if: -

  1. he establishes or maintains a personal or other relationship with a person for the covert purpose of facilitating the doing of anything falling within paragraph (b) or (c);
  2. he covertly uses such a relationship to obtain information or to provide access to any information to another person; or
  3. he covertly discloses information obtained by the use of such a relationship or as a consequence of the existence of such a relationship.

A covert human intelligence source would therefore include, for example, an investigating officer establishing a relationship with a person for the purposes of obtaining information relevant to an investigation without the officer revealing his or her true identity.

The criteria for the authorisation of the use of covert human intelligence sources set out in Section 29 are the same as with directed surveillance save that the additional criteria, in Section 29(5), must be applied. In essence they require that specific arrangements must exist to ensure that, amongst other things, the source is independently managed and supervised, that records are kept of the use made of the source and the source’s identity is protected from those who do not need to know it.

Authorisation

Under the Regulation of Investigatory Powers (Prescription of Offices, Ranks and Positions) Order 2000 (No. 2417) the authorising officer for a Local Authority for the use of directed surveillance or of covert human intelligence sources is the "Assistant Chief Officer responsible for the management of an investigation". This phrase is not further defined. It may be that the forthcoming Home Office Code of Practice, which is due to be issued towards the end of this year, will assist.

An authorisation may authorise more than one officer to carry out surveillance and may include a number of surveillance exercises. However it may only relate to a single investigation.

It is not permissible to give any officer a blanket authorisation to be relied upon in any situation.

Ordinarily the authorisation must be in writing. Model Authorisation documents are available on the Home Office Web Site.

In urgent cases authorisation may be given orally.

An oral authorisation lasts 72 hours. Written authorisations for the use of directed surveillance last 3 months and for the use of covert human intelligence sources last 12 months.

The authorisation may be renewed at any time prior to its expiry. However the same conditions apply as to the original authorisation.

Further information

The Home Office Web Site is at:

www.homeoffice.gov.uk

It contains the legislation, the guidance notes and the model authorisation forms.

 

 18 October 2000