RIPA & The Protection of Freedoms Act 2012 Tim Glews

RIPA 2004 – Specifically for the detection of crime Definition of crime is very broad; murder – to – dog fouling Originally designed for the police, but some LA areas of regulation also caught Home office review due to complaints concerning LA`s using the RIPA provisions for petty reasons – School catchment area surveillance, etc

Protection of Freedoms Act 2012 (PoFA) Adds an additional layer of authorisation & changes the types of activity for which surveillance can be authorised Only “serious offences” are now covered From LA`s need to seek approval from a magistrate for authorisation of any of the 3 covert surveillance methods; –Directed Surveillance –Use of a CHIS –Accessing communications data

Magistrates Deliberation Are there reasonable grounds for the LA to believe that RIPA is necessary & proportional Does the person authorising the RIPA power have that power delegated correctly Detecting & preventing serious offences test is satisfied All correct procedures have been followed (See criminal procedures rules 2012 part 6)

The Serious Offences Test Directed Surveillance; –Only used for detecting or preventing a criminal offence. (Used to include use for preventing public disorder) Penalty Threshold; –A criminal offence for the purposes of RIPA must carry a minimum term of 6 months imprisonment on conviction, attaches or involves the sale of alcohol or ciggarettes to children (Keep the thresholds in mind)

LA Implications of the 2012 Act Still at the LA`s discretion to undertake surveillance Potential delay to proceedings to obtain magistrates approval for an authorisation Where covert surveillance fails the “serious offences” test overt surveillance may still be undertaken.

Good RIPA Management Home Office Guidance Only appropriate level of officer can authorise applications – delegated authority. Application properly queried / tested – Can the info be gained without the use of RIPA? Is the use appropriate – Serious offences test is satisfied Proportionality test has been considered The authorisation document states explicitly what is being authorised – Includes use of equipment, tactics & techniques & the subjects of the surveillance (Case Law) Officer fully understands the capability of any surveillance equipment (Case Law) The authorisation states explicitly length of the permitted exercise Case Law is Regina – v – Sutherland 2002

Good RIPA Management Renewing Authorisations Not broaden the scope, may restrict it Tactics & Techniques may be amended, may change as investigation develops Identity of persons & subject of surveillance may not be changed

Good RIPA Management Cancellation of Authorisations At the earliest opportunity –Record date & times authorisation took place & date + time cancelled –Reasons for cancellation –All surveillance equipment removed –Instructions for correct management of info recovered –Update details of property / persons subject to surveillance –Record the value of the surveillance, success or failure! No requirement to advise the court of the cancellation, but good practice to do so.

Summary / Procedure Application in writing to court for a hearing of the application in front of a magistrate; –The authorisation to be considered –Any other material to be relied on in court –Proposals for the order to be granted / renewed (form of words for the court) Magistrate will hear the application in private (Same as seeking a warrant) Magistrate will approve or reject the application, no power for amendments to be made. If rejected the LA has 2 working days to make representations to the same magistrate

A FEW GOLDEN RULES “Spur of the moment” actions are not planned so Not RIPA restricted Only RIPA if the purpose is to prosecute – So gathering evidence for an abatement notice is not subject to RIPA provisions Only for covert surveillance Make the surveillance Overt & no need for RIPA – Overt may be “Irregular & unpredictable” over a specified time period. Only protects “private” information – (Domestic Premises)

A FEW GOLDEN RULES RIPA NOT required for interviewing under caution, PACE interviews, photographs, sampling, or exercising powers where authority is provided by statute or regulation, EG Powers of entry Any Other observations or queries?