1Reducing Risk of Challenge:The Where, What and How ofUsing Regulated InvestigatoryPowersRobert Sutherland, AdvocateTerra ...
2The Where, What and How ofUsing Regulated InvestigatoryPowers
3The Where, What and How ofUsing Regulated InvestigatoryPowers• Halford v UK, (1997) 24 EHRR 523- alleged telephone tappin...
4The Where, What and How ofUsing Regulated InvestigatoryPowers• Regulation of Investigatory Powers Act 2000– Part I : inte...
5The Where, What and How ofUsing Regulated InvestigatoryPowers• Regulation of Investigatory Powers (Scotland) Act 2000– re...
6The Where, What and How ofUsing Regulated InvestigatoryPowers• Communications Data– where necessary for purposes of preve...
7The Where, What and How ofUsing Regulated InvestigatoryPowers• Surveillance– includes monitoring, observing or listening ...
8The Where, What and How ofUsing Regulated InvestigatoryPowers• Intrusive Surveillance– intrusive if, and only if, it is c...
9The Where, What and How ofUsing Regulated InvestigatoryPowers• Intrusive Surveillance– stepping onto residential property...
10The Where, What and How ofUsing Regulated InvestigatoryPowers• Directed Surveillance and Covert Human IntelligenceSource...
11The Where, What and How ofUsing Regulated InvestigatoryPowers• Directed Surveillance– covert surveillance [carried out i...
12The Where, What and How ofUsing Regulated InvestigatoryPowers
13The Where, What and How ofUsing Regulated InvestigatoryPowers• Covert Human Intelligence Sources– a person who establish...
14The Where, What and How ofUsing Regulated InvestigatoryPowers• Protection of Freedoms Act 2012– mainly England, Wales an...
15The Where, What and How ofUsing Regulated InvestigatoryPowers• RIPA Authorisation – Communication Data– Director, Head o...
16The Where, What and How ofUsing Regulated InvestigatoryPowers• RIP(S)A Authorisation – Directed Surveillance + CHIS– Ass...
17The Where, What and How ofUsing Regulated InvestigatoryPowers• Importance of record keeping– centrally held retrievable ...
18The Where, What and How ofUsing Regulated InvestigatoryPowers• Regulation of Investigatory Powers Tribunal– remedies• st...
19The Where, What and How ofUsing Regulated InvestigatoryPowers• Regulation of Investigatory Powers Tribunal– inquisitoria...
20The Where, What and How ofUsing Regulated InvestigatoryPowers• Planning and Environmental Enforcement– Rugby Borough Cou...
21The Where, What and How ofUsing Regulated InvestigatoryPowers
22The Where, What and How ofUsing Regulated InvestigatoryPowers• What is reason for investigation, and its purpose?• Scope...
23Reducing Risk of Challenge:The Where, What and How ofUsing Regulated InvestigatoryPowersRobert Sutherland, AdvocateTerra...
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Where what and how of using rip presentation

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Presentation to Terra Firma Chambers Local Government Conference 2013 on Regulation of Investigatory Powers

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Transcript of "Where what and how of using rip presentation"

  1. 1. 1Reducing Risk of Challenge:The Where, What and How ofUsing Regulated InvestigatoryPowersRobert Sutherland, AdvocateTerra Firma Chambers
  2. 2. 2The Where, What and How ofUsing Regulated InvestigatoryPowers
  3. 3. 3The Where, What and How ofUsing Regulated InvestigatoryPowers• Halford v UK, (1997) 24 EHRR 523- alleged telephone tapping (1990)• Connor v HMA, 2002 SLT 671- surveillance of entrance to a block of flats (1998)• Kinloch v HMA, 2013 SCCR 100- following suspects driving about and stopping at variouslocations (2008)
  4. 4. 4The Where, What and How ofUsing Regulated InvestigatoryPowers• Regulation of Investigatory Powers Act 2000– Part I : interception of communications sent by public postalservices or public telecommunications systems– Part II : regulation of surveillance and use of covert humanintelligence sources– Part III : encrypted intercepted information– Part IV : Interception of Communications Commissioner;Intelligence Services Commissioner; Investigatory PowersTribunal– Part V : miscellaneous and supplementary provisions
  5. 5. 5The Where, What and How ofUsing Regulated InvestigatoryPowers• Regulation of Investigatory Powers (Scotland) Act 2000– regulation of surveillance and the use of covert humanintelligence sources– appointment by the Scottish Government of SurveillanceCommissioners in respect of the use of powers underRIP(S)A– Tribunal appointed under RIPA to deal with complaints inrelation to conduct to regulated by RIP(S)A• Cross border operations– RIPA, Section 76: RIP(S)A deemed = RIPA authorisation– lasts for up to 3 weeks, provided RIP(S)A authorisationremains in force
  6. 6. 6The Where, What and How ofUsing Regulated InvestigatoryPowers• Communications Data– where necessary for purposes of preventing or detectingcrime or of preventing disorder– restricted to subscriber information (sender) and service useinformation (when/duration) – not traffic date =content/point of origin/receiver• Directed Surveillance• Intrusive Surveillance• Covert Human Intelligence Sources
  7. 7. 7The Where, What and How ofUsing Regulated InvestigatoryPowers• Surveillance– includes monitoring, observing or listening to persons, theirmovements, their conversations or their other activities orcommunications– recording anything monitored, observed or listened to– using any device or apparatus designed or adapted for use insurveillance
  8. 8. 8The Where, What and How ofUsing Regulated InvestigatoryPowers• Intrusive Surveillance– intrusive if, and only if, it is covert surveillance that—(a) is carried out in relation to anything taking place on anyresidential premises or in any private vehicle; and(b) involves the presence of an individual on the premisesor in the vehicle or is carried out by means of asurveillance device– not intrusive to extent that carried out by means only of asurveillance device designed or adapted principally forpurpose of providing information about location of a vehicle– not intrusive unless device consistently provides informationof same quality and detail as might be expected from adevice present on the premises or in the vehicle
  9. 9. 9The Where, What and How ofUsing Regulated InvestigatoryPowers• Intrusive Surveillance– stepping onto residential property, e.g. garden path– video recording inside residential premises– local authorities = NO!• Non Intrusive Surveillance– CCTV of a street or other public place, or non-residentialprivate property
  10. 10. 10The Where, What and How ofUsing Regulated InvestigatoryPowers• Directed Surveillance and Covert Human IntelligenceSources– where necessary –(a) for the purpose of preventing or detecting crime orpreventing disorder;(b) in the interests of public safety; or(c) for the purpose of protecting public health
  11. 11. 11The Where, What and How ofUsing Regulated InvestigatoryPowers• Directed Surveillance– covert surveillance [carried out in a manner calculated toensure that person subject to surveillance is unaware that itis or may be taking place not intrusive]– undertaken for purposes of a specific investigation or aspecific operation– undertaken in such a manner as likely to result in obtainingof private information [any information relating to a person’sprivate or family life] about any person– not carried out by way of an immediate response to eventsor circumstances the nature of which is such that it wouldnot be reasonably practicable for an authorisation to besought beforehand
  12. 12. 12The Where, What and How ofUsing Regulated InvestigatoryPowers
  13. 13. 13The Where, What and How ofUsing Regulated InvestigatoryPowers• Covert Human Intelligence Sources– a person who establishes or maintains a personal or otherrelationship with another person for the covert purpose ofobtaining information or the provision of access to anyinformation, or who covertly discloses information obtainedby the use of such a relationship or as a consequence of theexistence of such a relationship– covers undercover officers, informants and people used tomake test purchases, including a local authority’s owntrading standards official
  14. 14. 14The Where, What and How ofUsing Regulated InvestigatoryPowers• Protection of Freedoms Act 2012– mainly England, Wales and Northern Ireland– 1 November 2012– local authorities required to obtain judicial approval prior tousing any covert techniques– authorisations and notices under RIPA will only be giveneffect once an order has been granted by a justice of thepeace in England and Wales, or a district judge in NorthernIreland; or a sheriff in Scotland (for communications data)– use of directed surveillance under RIPA limited toinvestigation of crimes which attract a custodial sentence of6 month or more, with the exception of offences relating tothe underage sale of alcohol and tobacco.
  15. 15. 15The Where, What and How ofUsing Regulated InvestigatoryPowers• RIPA Authorisation – Communication Data– Director, Head of Service or Service Manager or equivalent– in writing– valid for a month, from the date of sheriff’s approval– renewals must be made before expiry of the month– authorising person requires to be satisfied that proportionate– local authority to keep copy of all original documentation,provide copy of authorisations, notices, other relevantdocumentation to sheriff
  16. 16. 16The Where, What and How ofUsing Regulated InvestigatoryPowers• RIP(S)A Authorisation – Directed Surveillance + CHIS– Assistant Head of Service or Investigation Manager or above– if urgent may be granted orally, otherwise it must be inwriting– authorising person requires to be satisfied that necessary forone of the statutory purposes– authorising person requires to be satisfied that investigationactivity proportionate to what is sought to be achieved– authorising person requires to take into account risk ofintrusion into the privacy of those not subject ofinvestigation– collateral intrusion - assess risk; notify; authorise?
  17. 17. 17The Where, What and How ofUsing Regulated InvestigatoryPowers• Importance of record keeping– centrally held retrievable records– kept for 3 years– additional records to be kept• Surveillance Commissioners• Interception of Communications Commissioner
  18. 18. 18The Where, What and How ofUsing Regulated InvestigatoryPowers• Regulation of Investigatory Powers Tribunal– remedies• statement that a determination in favour of complainant:– information about findings– cancellation or quashing of authorisations– destruction of records: Rugby Borough Council – noorder– compensation: Rugby Borough Council - £2,500awarded• statement that no determination in favour of complainant– Kennedy v UK, (2011) 52 EHRR 4
  19. 19. 19The Where, What and How ofUsing Regulated InvestigatoryPowers• Regulation of Investigatory Powers Tribunal– inquisitorial role– no power to award costs?• W v Public Authority– http://www.ipt-uk.com• how to complain + complaint forms• rulings• Human Rights claims – intrusive surveillance
  20. 20. 20The Where, What and How ofUsing Regulated InvestigatoryPowers• Planning and Environmental Enforcement– Rugby Borough Council - use of home for business purposes• Education - school catchment areas– Paton v Poole Borough Council – allegation that falselyclaiming to live in school catchment area• Housing Benefit and Council Tax Benefit – fraud• Licensing regimes• Anti-social behaviour –– noise monitoring equipment not covered by RIP(S)A?• Trading standards• Own employees
  21. 21. 21The Where, What and How ofUsing Regulated InvestigatoryPowers
  22. 22. 22The Where, What and How ofUsing Regulated InvestigatoryPowers• What is reason for investigation, and its purpose?• Scope of investigation proportionate to reason andpurpose?• RIP(S)A applies, even if no breach of Art. 8 or anotherpower to justify an investigation• Covert – no requirement to notify subject of investigation• Halford = intrusive surveillance, and unlawful if LA• Connor + Kinloch = directed surveillance; not intrusivesurveillance• Need for intrusive surveillance = police investigation
  23. 23. 23Reducing Risk of Challenge:The Where, What and How ofUsing Regulated InvestigatoryPowersRobert Sutherland, AdvocateTerra Firma Chambers

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