Author: Adrian Ramdat (Director of Training & Consultancy)
June 2024
In the digital age, where people share personal information widely and privacy concerns are ever-growing, the use of surveillance powers by public authorities is becoming a focal point of legal and ethical debate.
The Regulation of Investigatory Powers Act 2000 (RIPA) in England, Wales and Northern Ireland and the Regulation of Investigatory Powers (Scotland) Act 2000 (RIPSA) in Scotland were introduced to provide a legal framework for covert surveillance.
However, these laws have faced significant scrutiny and as a result have revealed a myriad of issues.
The Balancing Act: Proportionality and Necessity
One of the cornerstones of lawful surveillance under RIPA and RIPSA is the principle of necessity and particularly proportionality. The courts and tribunal have repeatedly questioned whether the surveillance measures taken were proportionate given the circumstances.
One case that seems to have caused a reluctance by local authorities to use RIPA or RIPSA was the case against Poole District Council going back to 2010, where the issue of proportionality was closely examined and there was some criticism from the Investigatory Powers Tribunal (IPT) as the local authority hadn’t adequately considered other methods before resorting to covert surveillance.
However, one of the areas examined in the case of R v. Sutherland (2002), the court scrutinised whether the surveillance conducted was a proportionate response to the offence that was being investigated. This case, was one in a series of three cases that resulted in some criticism of police actions but reassuringly despite other failings, the police were found to have acted in a proportionate manner in their use of covert tactics.
These cases highlight the delicate balance that authorities must strike between effectively detecting crime and overreaching their powers.
Required Knowledge – Ignorance is no excuse.
The case of Davies v British Transport Police which was heard by the IPT in 2018 is a clear example of how an authorisation is required when the required threshold is met and the lack of knowledge by staff can cause significant issues.
The subsequent investigation into that case made it clear that the actions of the investigating officer met the threshold for an authorisation and the IPT didn’t hold their punches when they stated “A detective of any standing, let alone one with several years’ experience, should have knowledge of the legal requirements relating to the investigation of crime, including RIPA, and ignorance is neither excuse nor mitigation.” It went on to state that “…a number of other BTP officers of various ranks were involved in this matter and not one of them had an adequate knowledge of the relevant requirements of RIPA.”
This case resulted in Mr Davies being awarded almost £50,000 in compensation and the British Transport police being heavily criticised in the media.
There is no excuse for not knowing the basic definitions involved in RIPA or RIPSA activity. It certainly allows investigators to make defensible decisions as to when they believe an authorisation is or, arguably more importantly when they believe one, is not required.
Authorisation Needed.
Proper authorisation is paramount to lawful surveillance, yet lapses in this area have surfaced in legal challenges.
The absence of an appropriate authorisation mechanism can lead to unauthorised surveillance operations, which in turn, could lead to challenging the evidence, the exclusion of crucial evidence in court or the IPT ordering that the material obtained via covert surveillance be destroyed.
Proper authorisation is paramount to lawful surveillance and not having one in place when it is required is an error that is reportable to the Investigatory Powers Commissioners Office (IPCO) and can lead to sanctions against the organisation.
A real area of vulnerability in this area is online research, where there are instances of staff undertaking such research which meets the required legal definition for an authorisation to be sought but this has not been the obtained. Defence lawyers are now starting to examine online research closely as it is one avenue for requesting that crucial evidence be excluded.
Without a robust authorisation process, the legitimacy of surveillance activities remains legally questionable and potentially undermines public trust.
Procedural Pitfalls: The Devil in the Details
Errors in following prescribed procedures for obtaining surveillance authorisations have also plagued investigations. Procedural missteps, whether due to oversight or negligence, have led courts to exclude evidence gathered through such means. These errors not only jeopardise individual cases but also cast doubt on the integrity of the surveillance system as a whole.
Overuse and Misuse: A Blunt Instrument?
The application of RIPA and RIPSA has not been immune to criticism regarding overuse and misuse. Instances where surveillance powers were deployed for minor offences have sparked debates on the appropriate use of such intrusive measures.
In fact, the use of RIPA and RIPSA activity for so called trivial offences resulted in the legislation being changed so that authorisations under RIPA or RIPSA now require court approval for some activities prior to the activity taking place.
The question often arises: should surveillance tools, initially designed to combat serious crime and terrorism, be employed for trivial matters and is RIPA and RIPSA being used as a blunt instrument?
Data Handling: Safeguards Under Scrutiny
The retention and handling of data obtained through surveillance are subject to strict data protection laws and also requirements under RIPA or RIPSA, that are set out in the Codes of Practice.
Failures in safeguarding this data or processing it lawfully have led to significant legal challenges, for example into the prosecution of the two men who stood trial for the murder of Charlene Downes and were subsequently released as the surveillance material had not been stored or managed correctly
Mishandling of surveillance material not only violates data protection legislation but also risks eroding public confidence in surveillance practices. This area has now also become a standing item by IPCO during their oversight inspections. A number of organisations are finding that not handling the product correctly can result in being issued with a ´non-compliance´ finding and in some cases has resulted in being given a warning that their ability to use the powers may be revoked.
Fair Trial Rights: A Compromised Justice System?
The integrity of the judicial system hinges on the fair trial rights of defendants. Improperly conducted surveillance can severely compromise these rights, leading to the exclusion of vital evidence or even the dismissal of charges.
The courts are often left to navigate the stormy waters of ensuring justice while upholding the legal standards for surveillance and trying to ensure that compelling evidence is allowed to go before the jury whilst ensuring that defendant receives a fair trial.
Conclusion
The issues identified in court cases involving RIPA 2000 and RIPSA 2000 highlight the complex interplay between surveillance needs and individual rights. Only through the professionalism of investigators, vigilant scrutiny and continuous development can we safeguard both our safety and our fundamental freedoms.
At The Signature Brand Training & Consultancy, we offer a whole range of RIPA and RIPSA training courses that range from awareness or refresher training through to accredited training for applicants, gatekeepers and authorising officers which can lead to an externally awarded qualification, demonstrating occupational competence. We also offer our highly popular bitesize RIPA and RIPSA events that focus on a specific area such as Online Research and the requirements of RIPA/RIPSA. These sessions are delivered via Ms Teams in about an hour and can accommodate up to 50 people.
Whatever your needs for RIPA or RIPSA training, advice or consultancy don´t hesitate to contact us and we will give you our honest advice as to which solution is best for you, without any obligation on your part.
Find out more at www.thesignaturebrand.co.uk or contact us now at info@thesignaturebrand.co.uk
