30 October, 2012
On 1st November 2012, changes will come into force regarding Local Authorities' use of covert surveillance under the Regulation of Investigatory Powers Act 2000 (RIPA). Sections 37 and 38 of the Protection of Freedoms Act 2012 will introduce amendments to RIPA, and a major change that this brings is the new onerous procedure that Local Authorities must follow to carry out covert surveillance. The changes will have a serious impact on managers of Council and ALMO housing.
The old procedure governed by RIPA remains in force and must still be followed. In short, this involves an assessment of the necessity and proportionality of the request, completion of the RIPA authorisation form, and finally approval from an authorising officer or designated person. Once this process has been completed, the new additional procedure introduced must then be adhered to.
Local Authorities are now required to obtain judicial approval, by a District Judge or a Lay Magistrate, before implementing any directed covert surveillance techniques (the law does not apply to surveillance which was not "directed" by the Local Authority, such as videos taken on witness' mobile phones on their own initiative).
A Local Authority must contact the local court administration office to arrange a hearing. In preparation for the hearing, a Local Authority is required to provide a copy of the RIPA authorisation documents and all the supporting evidence. These documents form the basis of the case and should therefore contain all information that the Local Authority wishes to rely upon. This is vitally important, as oral representations given at a hearing that are not reflected in the documents will not be sufficient evidence. Alongside these documents, the Local Authority must complete a judicial approval application form. This form requires a brief summary of the case to be provided, in addition to the RIPA authorisation documents. At the hearing, the Judge will assess whether there are reasonable grounds to believe that the application is both necessary and proportionate.
The most important change is the "crime threshold" that has been attached to directed surveillance, under a new statutory instrument which amends Article 7A of the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010.
From 1 November 2012, for a Local Authority to obtain a directed surveillance order from the court, the alleged offence must at least be punishable with up to 6 months' prison, or be related to underage sale of alcohol and tobacco. This means that directed covert surveillance such as CCTV and sound recording, which would be used for the purposes of tackling antisocial behaviour, will no longer be capable of being authorised unless the behaviour constitutes a criminal offence carrying a maximum prison term of six months or more. Local Authorities and ALMOs will therefore be prohibited from using secret sound recording equipment to tackle noise nuisance or secret CCTV used to capture breaches of ASB Injunctions or Undertakings.
How can Local Authorities and ALMOs overcome the new requirements in relation to low level nuisance? The simple answer is to inform the person who is being monitored that they are subject to surveillance. RIPA only restricts the use of "covert" surveillance, and surveillance is no longer covert if the person is aware that they are subject to it.
For further advice and guidance on the effect of the new guidance, contact Forbes Solicitors' specialist Housing Litigation team on 01772 220022.