Author: Adrian Ramdat BA Ed, PGCE – Specialist Trainer
May 2023
I was recently speaking at a conference about updates to RIPA (& RIPSA for Scotland) and part of the session looked at some of the case law that has been decided which practitioners need to be aware of.
I have to admit, I am a little surprised when I deliver RIPA or RIPSA training that delegates generally don’t think there is much case law or guidance from the courts or tribunals. Whilst in relative terms they may not be a massive quantity of cases, there are still a significant number which are all of relevance to Applicants, Gatekeepers or Authorising Officers.
To that end I thought it may be useful to summarise some of the main cases so that you can have some awareness of key decisions that have been made. Over the next few articles, I will look at different cases to examine the issues and how they affect those of you that are involved in RIPA activity.
The first case of real note goes back to 2004 and was the case of R v Terry & Others. Whilst this case is almost 20 years old and revolves around activities when RIPA was in its infancy, the recommendations from the Crown Court are just as valid today as they were when HH Judge Broderick made them back then.
This case examined the application and authorisation process in quite some detail and whilst there were a number of issues in the Terry case, some of the main ones are:
- The Applicant should be the person with the best knowledge of the case – from first-hand knowledge of from knowing who can establish a particular point or a combination of the two.
I know a number of organisations use ‘professional applicants’ and there is a way in which this can still comply with the case but it is important that the days of just anyone completing the application, or the last person left in the office being allocated this job by ‘the boss’ should have been consigned to history.
The reasons the court made this recommendation was because when the Applicant in the Terry case was asked questions by the judge, he couldn’t answer a number of them so the judge stated that common sense dictates that the person completing the application should be the person with the best knowledge of the case. The reason for this stating of what some people believe should be obvious is so that if the Authorising Officer or anyone in judicial proceedings had questions then the applicant could answer them or know where to go to get the required information.
- Where the basis for a particular proposition isn’t clear (i.e. the vehicle is used by Mr Terry) that basis should be spelt out in the application.
This point always surprises me as in the case of Terry the plan was to deploy a listening device into Mr Terry’s car.
The application spoke of a particular vehicle being used by Mr Terry. If you are being asked to authorise this form of activity and the applicant tells you that the vehicle is ‘used by’ the subject then you should be able to trust that assertion. However, in the Terry case, when this was examined in more detail, at court, the intelligence actually showed that Mr Terry had only been seen twice in the vehicle in the preceding 6 months. In an operational context and from an authorising officer’s perspective there is a million miles between ‘used by’ and ‘seen twice in, in the last 6 months’ and that difference means the activity shouldn’t’ have been authorised.
If you are the applicant, be REALLY clear as to how and why you are making propositions, especially around the subjects of the surveillance, vehicles, locations and relevant times.
- Proper records should be kept of matters which are likely to form a basis of the application (i.e. visits to the location and his observations on such visits should have been noted).
In the case of Terry, the investigators made a number of visits or ‘drive by’ of the address to see which vehicles were on the driveway. I am not going to focus on the tactic of ‘drive by’ as they could be an article in their own right but the issue in the Terry case was when these ‘dive by’s’ were completed no one made a note of the times and dates and this was not included in the application.
If you are considering activity in and around a vehicle (such as deploying tracking devices, or deployment of audio recording devices), then this information is crucial to the application and the Authorising Officer will need to be sure that the vehicle they are being asked to authorise the activity against is correct.
And going back to the point made by the court, ensure you keep records of matters likely to form the basis of the application. This could be research, online activity or physical visits etc, it matters not what the activity it is… it has to be recorded.
- A written record of the discussions at the time when the authorisation was granted is of considerable importance (absence of a note means officers are vulnerable when asked about a meeting several months later).
There are occasions when an Authorising Officer has questions of the applicant. There is absolutely nothing wrong with this and there is noting wrong with the Applicant and Authorising Officer discuss matters relating to the authorisation process but the important point is that someone keeps a record of it.
I have, sadly, seen this play out in reality in another case where clearly the Applicant and Authorising Officer had had a discussion about the application. I don’t for one second think there was anything underhand and the purpose was only for the Authorising Officer to ask questions which they needed some reassurance on. However, no one kept a note and when it was challenged by the defence no one could PROVE what the discussions were about and the defence made the case that the Authorising Officer was directing the activity and involved in the investigation. As this couldn’t be rebutted the defence won the day and the authorisation (and subsequent surveillance product) was lost.
Thankfully this wasn’t my case but equally don’t let it be yours… Keep a record!
- There should be a record of all of the documents which were before the Authorising Officer. They should be kept unaltered and made available at a hearing where the grant of an authority is challenged.
I regularly train Authorising Officers who tell me how busy they are and I am not for one second disputing that fact but if they have documents before them then they should be making a note of what they have looked at and they should be keeping them in an unadulterated format in case the court asks. (In fact, these are probably relevant for the purposes of Disclosure under the Criminal Procedures & Investigations Act and should be scheduled).
And whilst we are here, I just want to cover a point which I think all Authorising Officers should think carefully about. There is a requirement before authorising activity that the Authorising Officer is ‘satisfied’ of the underlying intelligence about the case.
Lots of Authorising Officers say that they are too busy to check… well just remember it is a requirement to be ‘satisfied’ so maybe take this thought away… If I was being asked to authorise some form of covert activity against you, would you want me to read the intelligence or would you be happy with me saying I am too busy so I don’t have time. I think we all know the answer…
Well, this brings us to the end of this article and I hope you now feel a bit more informed and, if you didn’t, you now know the implications from the case of R v Terry and the significant points that affect the Applicant and Authorising Officer.
Thanks for reading and please do contact me with any queries or comments!
Adrian
