Grim RIPA

Plans to curtail the surveillance powers wielded by local authorities are currently going through parliament in the protection of freedoms bill. It contains measures that will limit the current scope of the Regulation of Investigatory Powers Act 2000 (RIPA) which includes the right to deploy surveillance cameras (both CCTV and ANPR).

Before the 2010 general election, both coalition parties promised to overhaul local authority surveillance powers under RIPA. They argued that surveillance was often used by local authorities to investigate minor offences and in a disproportionate manner. They pointed to newspaper headlines about the number of surveillance operations being carried out by 'town hall spies' to monitor dog fouling and littering.

They also expressed concern about the proliferation of CCTV cameras without much assessment or consultation. In June 2010 a controversial CCTV project in Birmingham was put on hold after a string of complaints. 'Project champion' involved the setting up of 169 automatic number plate recognition (ANPR) and 49 closed circuit television (CCTV) cameras predominantly in the Sparkbrook and Washwood Heath areas of the city. Both areas have large Muslim populations.

In September last year a review was published about the actions of West Midland Police in setting and running Project champion. It concluded that there was little evidence of compliance with the legal or regulatory framework. The review identified that the Data Protection Act and the CCTV code of practice as well as RIPA had been disregarded when setting up the project.

New CCTV code

Chapter 1 of part 2 of the protection of freedoms bill makes provision for the further regulation of surveillance camera systems. These are defined as CCTV, 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; and
• 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.

Camera commissioner

Clause 34 of the bill requires the creation of a new surveillance camera commissioner.

His job will be to encourage compliance with the code, review its operation, and make annual reports about the code and its operation to parliament. It is unclear whether he will have the power to inspect public authorities subject to the code.

The surveillance camera provisions in the bill add a completely new (and some would say unnecessary) layer of regulation

in this area. Cameras are already subject to controls under both the Data Protection Act (DPA) and, if used covertly, part 2 of RIPA. There is already a CCTV code under the DPA which is enforced by the information commissioner.

On 1 March, the Home Office launched a consultation on the contents of the new code, the deadline for which is 25 May.

Magistrate approval

RIPA regulates local authorities when conducting covert surveillance and accessing communications data. This is done by requiring applications for the doing of the same to be made in writing to a senior officer within the authority. That officer has to decide whether the surveillance is necessary and proportionate and, if so, approve the application.

Chapter 2 of part 2 of the bill (clause 37 and 38) will amend 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. An approval will also be 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 will allow the magistrate, on refusing an approval of an authorisation, to quash that authorisation. 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).

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. 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)).

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), such as a telephone or mobile phone service provider. Often these powers are used by, among others, benefit fraud investigators and trading standards officers to carry out mobile phone subscriber checks and to request itemised call records.

A new section 23A will be added to chapter 2 of part 1 of RIPA. 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 of various issues similar to those for directed surveillance and CHIS '“ that the right data is being authorised to be obtained by the right person and for the right reason.

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 made under RIPA itself (section 30(3)(b) of RIPA).

There is an exception to the new rule. The review recommends that because of the importance of directed surveillance in corroborating investigations into underage sales of alcohol and tobacco, the government should not seek to apply the threshold in these cases.

The Home Office says that the six-month threshold test will mean 'minor offences' will not be the subject of surveillance any more. But what is a minor offence? Dog fouling and littering may not seem as serious as benefit fraud but these offences are the subject of daily complaints to local authorities and ward councilors up and down the country.

The protection of freedom bill's changes to the local authority surveillance regime will mean officers and lawyers will have to get to grips with a new approval regime, new codes of practice and a new commissioner. These come less than a year after the previous government's revised RIPA codes of practice came into force. It is difficult to predict whether the new provisions will have the intended effect of strengthening the privacy rights of the citizen or whether they end up as a mere burden on public sector resources at a time when budgets are being squeezed.