The Government has recently published the ‘Code of Practice’ in relation to covert surveillance and property interference. The Code provides guidance on the use by public authorities of Part II of the Regulation of Investigatory Powers Act 2000 to authorise covert surveillance that is likely to result in obtaining private information about individuals. The Code also deals with entry or interference with a property by public authorities.
This article will highlight the most relevant extracts of the Code but for more information you can download the Home Office’s official document here
Under the 2000 Act surveillance includes monitoring, observing or listening to people, their movements, conversations or other activities and communications. Surveillance may or may not include a surveillance device and includes recording of any information.
Surveillance is covert if, and only if, information is recorded in a manner, which means that the person subject to the surveillance is unaware that it is, or may be taking place.
Part II of the 2000 Act, provides a statutory framework where covert surveillance can be authorised and conducted compatibly with Article 8 of the ECHR (a person’s right to respect for their private life).
Covert surveillance may be authorised under the 2000 Act if it is:
- Intrusive – covert surveillance that is carried out in relation to anything taking place on residential or private premises or a private vehicle.
- Directed – covert surveillance that is not intrusive but is carried out in relation to a specific investigation and is likely to result in obtaining private information about an individual.
The Protection of Freedoms Act 2012 amended the 2000 Act so that local authorities must obtain an order from a judicial authority approving an authorisation before it can take effect. In England and Wales, the application must be made to a Justice of Peace.
Under the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) (Amendment) Order 2012, local authorities in England and Wales can only authorise use of directed surveillance to prevent criminal offences that are either punishable by a maximum term of at least six months’ imprisonment or are related to the underage sale of alcohol and tobacco.
Local authorities may not authorise the use of directed surveillance to investigate complaints that do not involve criminal offences or to investigate low-level offences for example, littering.
Authorisation procedures for directed surveillance
Under section 28(3) of the 2000 Act, an authorising officer may grant authorisation for directed surveillance where they believe that it is a proportionate means to obtain what they wish to achieve and is necessary on the grounds prescribed by the Act. These include being in the interest of national security, for the purposes of preventing crime, in the interest of public safety and for the purpose of collecting any tax, contribution or charge payable to the government. Schedule 1 of the 2000 Act provides a list of the local authorities who are entitled to authorise direct surveillance.
The authorisation procedure
The Code prescribes that certain information should be included in the application to obtain authorisation including the following:
- The reasons why the authorisation is necessary and on what grounds.
- The nature of the surveillance.
- The identities where known, of those to be subject to the surveillance.
- An explanation of the information desired as a result of the surveillance.
- The details of any potential intrusion and why the intrusion is justified.
- The details of any confidential information that is likely to be obtained.
- The reasons why the surveillance is considered proportionate to what it seeks to achieve.
Authorisation must be given by an authorising officer in writing with the exception of urgent cases. As soon as reasonably practicable the authorisation should be recorded in writing by both the authorising officer and the applicant.
Written authorisation granted by an authorising officer will determine at the end of a period of three months beginning with the day when the authorisation was granted. Urgent authorisations cease to have effect after 72 hours.
The Code guidance states that a record of information must be centrally available within all public authorities for a period of at least three years from the ending of each authorisation. The information should include, amongst other things, the type of authorisation, the date of authorisation and the details of the authorising officer. The information needs to be updated, renewed and cancelled regularly.
Records must be available for inspection by the Commissioner and retained to allow the Investigatory Powers Tribunal, established under Part IV of the Act, to carry out its functions.
For further information, please contact Jonathan SmithThis information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.