Author: Adrian Ramdat (Director of Training & Consultancy)
April 2024
In the digital age where data is abundant and surveillance technologies are more sophisticated than ever, the practice of directed surveillance has become a topic of both intrigue and concern.
Directed surveillance refers to the covert monitoring or observation of specific individuals or groups by law enforcement or other authorised organisations.
In the UK, where legal frameworks tightly regulate such activities, there exists a notable reluctance among some organisations to engage in directed surveillance. This reluctance stems from a variety of factors, ranging from legal constraints to ethical considerations and practical challenges.
Legal Constraints and Regulatory Frameworks:
One of the primary reasons for the reluctance of organisations to use directed surveillance in the UK is the stringent legal framework governing such activities. The Regulation of Investigatory Powers Act 2000 (RIPA) applies in England, Wales & Northern Ireland and the corresponding legislation (RIPSA) applies in Scotland.
Subsequent amendments not only through legislation in the form of the Protection of Freedoms Act but also updates to the Codes of Practice and inspection reports from the Investigatory Powers Commissioners Officer (IPCO) lay down detailed provisions regarding the application and authorisation process, conduct, and oversight of surveillance operations, including potential sanctions from IPCO or legal action via the Investigatory Powers Tribunal (IPT).
Under RIPA, directed surveillance can only be authorised for specific purposes, such as preventing or detecting crime, national security, or protecting public safety.
Moreover, organizations must obtain authorisation from designated authorising officers, such as senior police officers or senior government officials, before conducting directed surveillance.
This authorisation process involves rigorous scrutiny to ensure compliance with legal requirements, including the necessity and proportionality of the surveillance activity.
For local authorities, certainly in England and Wales, it has to meet the ‘serious crime test’ or be for a specified exception and then has to be approved by a Justice of the Peace, meaning the whole process is elongated and can be time-consuming.
Failure to adhere to these legal constraints can result in severe penalties, including criminal prosecution and civil liability, thereby dissuading organisations from undertaking such activities without due authorisation.
Ethical Considerations and Privacy Concerns:
In addition to legal constraints, ethical considerations and privacy concerns play a significant role in shaping the reluctance of organisations to engage in directed surveillance.
The right to privacy is enshrined in various international conventions and domestic laws, emphasizing the importance of protecting individuals’ autonomy and dignity against unwarranted intrusions by the state or, in some cases, private actors.
Directed surveillance, by its very nature, involves covert observation and monitoring, which can infringe upon individuals’ rights to privacy. Organisational leaders are cognisant of the potential backlash and reputational damage associated with perceived violations of privacy, especially in an era where public scrutiny of surveillance practices is heightened. This has been seen in a number of cases from the IPT, where often the highlights but not the real substance of the failings are reported in the media or researched by practitioners. For example, I often see many staff from local authorities misquote prior cases such as the Pool District Council case, which whilst it was found RIPA was incorrectly applied by the local authority, it also laid out a pathway that if followed would ensure that future action would not encounter the same issues.
Hence, many organisations err on the side of caution, preferring to avoid directed surveillance altogether rather than risk tarnishing their reputation or facing legal challenges.
Practical Challenges and Resource Constraints:
Beyond legal and ethical considerations, practical challenges and resource constraints also contribute to the reluctance of organisations to utilise directed surveillance.
Surveillance operations can require significant financial, technological, and human resources, including specialised equipment and operational infrastructure.
In all cases it does require staff to be trained to undertake this covert activity as it is not as simple as just sitting in a car taking a few photographs as how the subsequent surveillance material is handled is now very much an area of challenge by defence lawyers.
For many organisations, particularly those outside the police or similar law enforcement organisations and intelligence agencies, investing in such resources may not be feasible or justifiable, especially when weighed against other competing priorities and possibly shrinking budgets.
Furthermore, the complexity and uncertainty surrounding surveillance operations, including the potential for operational risks and unforeseen consequences, deter organisations from venturing into this domain. The lack of expertise and experience in conducting directed surveillance further exacerbates these challenges, leading organisations to opt for more conventional methods of information gathering and intelligence gathering.
Conclusion:
In conclusion, the reluctance of organisations to use directed surveillance in the UK can be attributed to a combination of legal constraints, ethical considerations, and practical challenges. While directed surveillance remains a crucial tool for law enforcement and national security agencies in combating crime and safeguarding public safety, its deployment outside these contexts is fraught with legal, ethical, and operational complexities.
As society continues to grapple with the balance between security imperatives and individual liberties, organisations must navigate these challenges judiciously, ensuring compliance with legal standards, respect for ethical principles, and prudent allocation of resources in their pursuit of surveillance activities.
However, rest assured you are not alone, we have a team of very experienced practitioners and trainers that can assist with training all of the roles including applicants and authorising officers, through to surveillance training and we also offer consultancy and advice, which is all grounded in the understanding of the legislation, guidance and operational practice, so we are here to provide the support and guidance that you need to use this valuable tool to maximum effect.
Contact us now at info@thesignaturebrand.co.uk or find out more here www.thesignaturebrand.co.uk