Covert Surveillance

covert surveillance= secret surveillance/monitoring.  Every aspect of your life can be monitored, allowing you no privacy.

Prior to RIPA: law focused on controlling covert surveillance where there is an intrusion onto a property.  So, lots of covert surveillance techniques were uncontrolled by law.

Issue: R v Khan: the law was no help in this case; surveillance device was technically outside of a private house, so not seen as an intrusion; also no law to govern.

Khan v UK: Court of Human Rights ruled the bugging in the case as not ‘in accordance with law’: not prescribed by law.

The new approach to covert surveillance is found in Part II of RIPA and Part III of the  Police Act 1997.  The law now covers covert surveillance taking place outside of the property.

There are two types of covert surveillance:

·         Intrusive Surveillance

·         Directed Surveillance

S.26(3) of RIPA: ‘intrusive surveillance’= when a surveillance device is used on residential premises or in private vehicles.  E.g. listening devices in the home.

S.32(3): Intrusive surveillance warrant can only be given by the Home Secretary or the Highest ranked police/customs officer for the purpose of:

•   National Security
•  Preventing or Detecting Serious Crime
•  Preventing Disorder
• The Economic Well-Being of the UK

The warrant must be proportionate.

•          S.35: The Surveillance Commissioner must be told and must approve a warrant before it is used, unless the warrant is urgent.  So, there is a check carried out and a warrant must be approved before used.  Effective: this should stop illegal warrants before an infringement of privacy takes place.
•          Checking of authorisation may ensure rigour in preparing paperwork for an application for an intrusive surveillance warrant.  Once again showing there is a check, and that there is a need for paperwork.  Effective: All correct procedure should be followed.

Overall, there are effective control mechanisms for Intrusive Surveillance.

S.26(2): if surveillance if not intrusive, it is directed surveillance.

This covers all surveillance methods not on a premises; UNLESS the method gathers info of quality as if the method was on a premises.

Methods: Stakeouts, listening devices in non-residential premises  

S.28: Reasons a warrant for directed surveillance may be granted:

·         Interests of National Security

·         Preventing or Detecting Crime or Preventing Disorder

·         Protecting Public Health

·         For the Purpose of assessing/collecting money owed to a government department

·         For any other purpose specified by an order of the Secretary of State

Authorisation: May be given by a ‘designated person’.

S.30: a designated person=a person having sufficient authority in a designated public authority.

Public authorities-designated by the Secretary of State’s order.

Public Authorities designated include:

·         Police

·         Security Services

·         Customs and Excise

·         Inland Revenue

·         Armed Forces

·         Dept. of Health, Social Security, Trade and Industry, Environment, Transport and Regions.

S.28(2): The person authorising the warrant must be convinced that the directed surveillance is proportionate.

·         Independent checks are carried out by Surveillance commissioners and their assistants.  So, independent checks are carried out.  Effective: Warrants are being checked so directed surveillance is carried out on a good reason and illegal warrants should be stopped.

·         A distinction exists between ‘directed surveillance’ and ‘general law enforcement duties’, which are not covered by the Act.  If directed surveillance is an immediate response to criminal activity then no warrant is needed.  This shows that a warrant is needed to carry out directed surveillance, but Ineffective: there’s a loophole allowing for unwarranted surveillance, and police can avoid applying for warrants.  It may allow for abuse.

·         Surveillance Commissioners monitor warrants after they have been issued.  Warrants are monitored; BUT only after they’re issued, meaning illegal warrants could be active.

·         Survey 2009 of 180 local authorities that were given power to carry out directed surveillance:

o   1,615 council staff had the power to authorise the use of RIPA

o   21% of those staff were below management grade

o   RIPA had been used 10, 333 times between 2004-2009

o   Just 9% of authorisations=successful prosecutions/cautions/fixed penalty notices

So, there is a report on statistics, which means issues can be tackled.  Also proves that surveillance is carried out on warrants, and warrants are checked. BUT: statistics shows that the power of authorisation is wide-spread within local authorities and there is a lack of proportionality; only 9% of warrants saw results, 91% of warrants were unjustifiable.

·         Introduction of Protection of Freedoms Act 2012 by Nick Clegg: limits use of covert surveillance by local authorities; only for offences that carry a prison sentence of at least six months (Though won’t affect investigations into underage alcohol and tobacco sales).  Additionally: there are requirements for councils to seek a magistrate’s approval before a warrant for directed surveillance and CHIS can be issued.  So, a limit is placed on how directed surveillance is used, and there is an added check.  Effective: The power should be used in a more proportionate manner by local councils on only serious offences.  Additional checks should stop unjustified/illegal warrants.

·         There is an increase in CCTV use by local authorities, but this is not regulated by part II of RIPA: because the use is not undertaken for a specific reason.  S.163 of Criminal Justice and Public Order Act 1994: regulates CCTV; capturing of images on CCTV may not amount to an invasion of privacy.  The Protection of Freedoms Act 2012: introduced Surveillance Camera Commissioner to regulate use of CCTV.  But the ACT only applies to publicly owned and police operated systems: which accounts for 2% of CCTV cameras; the rest are owned by private companies.  A New Code of Practice will be produced.  So, there is now some control over CCTV; should help control CCTV.  BUT; does not afford protection against private companies which make up the bulk of CCTV.

A CHIS= an individual authorised to covertly establish/ maintain a relationship to gather information, i.e. an undercover agent or informant.

The use of a CHIS is authorised by designated people in a range of public authorities, similar to directed surveillance.  There is a proportionality requirement in granting authorisation.

S.29 RIPA provides the grounds for authorising a CHIS.  They are the same as directed surveillance:

•       Interests of National Security
•      Preventing or detecting crime or preventing disorder
•      Protecting public health
•     Assessing or collecting money owed to government departments
•     Any other purpose stated by the Secretary of State.

If a CHIS uses a recording or listening device it is not considered intrusive surveillance unless the CHIS leaves the device behind on the premises. 

Does the system provide control and accountability over the state when it is using these powers?

Not enough:

·         Loopholes: CHIS are able to use intrusive surveillance under directed surveillance and police are able to carry out directed surveillance without a warrant if it is said to be in response to a crime.

·         There are a large number of people that can authorise directed surveillance

·         There are insufficient checks on warrants

Police Act 1997 Part III: creates additional powers of covert surveillance: ‘burgle and bug’

‘burgle and bug’= allows a person to break into a property and place listening/recording device where normally entry would have to be gained differently.

S.39: A warrant can be authorised where is to be of substantial value in :

·         Preventing and detecting serious Crime AND

·         The objective cannot reasonably be achieved by other means 

‘Serious crime’ is defined as:

·         Crimes of violence

·         Crimes involving substantial financial gain

·         Crimes involving a large number of people in pursuit of a common purpose

S.93: Authorisation must be given by the Chief of Police or if necessary an officer of the rank of Assistant Chief Constable

·         The reasons that justify ‘burgle and bug’ could allow for pressure groups, when a protest is planned, to be burgled and bugged.  It is good that there are reasons needed to authorise, but it could allow unjustifiable intrusions against groups the state doesn’t like.

·         1999 Codes of Practice: states the bugging power is only to be used in cases of serious crime.  There is clarification; and also a limitation on the grounds that the power can be used, so should ensure justifiable intrusions of privacy. BUT, the Codes are only rules, not laws.

·         Commissioners must be informed of authorisation prior to the action but this doesn’t stop police from acting on the authorisation.  Warrants are checked, BUT not until after the fact.

·         There are some limited checks on authorisation that have been added to the Act by opposition political parties.  Michael Howard wanted police to have the power for immediate response, but this was not accepted.  S.97(2): Prior approval from commissioners where the property concerned is believed to be:

o   A dwelling. OR

o   A hotel bedroom. OR

o   An office premises. OR

o   The information is of a sensitive nature

 So, checks and prior approval are needed from commissioners in certain situations.  This is  Better: means that there is an effective check in some situations, which should stop unjustifiable intrusions of privacy.

·         There is a tendency for Commissioners to accept and agree with police when supervising warrants.  There is still a check, BUT if the check is not thorough or objective then unjustifiable intrusions of privacy could take place.