8. Granting authorisations for directed surveillance
Section 28 provides that a person shall not grant authorisation for directed surveillance unless he believes that:
the authorisation is necessary in the circumstances for the purpose of;
- preventing or detecting conduct which is a criminal offence being an offence punishable, whether on summary conviction or indictment, by a maximum term of at least 6 months’ imprisonment, or
- offences relating to the underage sale of alcohol and tobacco (being those offences listed in Article 7A of the 2010 Order [SI: 2010/521] as amended), or
- preventing disorder where such disorder involves a criminal offence punishable (whether on summary conviction or indictment) by a maximum term of 6 months’ imprisonment,
and therefore any application must address why it is necessary.
The authorised surveillance is proportionate to what is sought to be achieved by it. This involves balancing the intrusiveness of the activity on the target and others who might be affected by it against the need for the activity in operational terms. The activity will not be proportionate if it is excessive in the circumstances of the case or if the information which is sought could reasonably be obtained by other less intrusive means. All such activity should be carefully managed to meet the objective in question and must not be arbitrary or unfair.
A local authority may not authorise the use of directed surveillance under RIPA to investigate conduct or disorder that does not involve criminal offences or to investigate low level offences which may include, for example, littering, dog control and fly-posting. At the start of an investigation, council officers will need to satisfy themselves they are investigating a criminal offence punishable by a prison term of 6 months at least (unless related to under age tobacco and alcohol sales).
The authorising officer in determining whether the surveillance is proportionate will give particular consideration to any collateral intrusion on or interference with the privacy of persons other than the subject(s) of the surveillance. Measures should be taken, wherever practicable, to avoid or minimise unnecessary intrusion into the lives of those not directly connected with the investigation or operation.
The Council officer must obtain an authorisations in writing from an authorising officer (see Section 5). Wherever possible authorising officers should not be responsible for authorising the activities of their own services.
Having obtained a written authorisation, it is then necessary to obtain the approval of a Justice of the Peace (Magistrate) (‘JP’). The Home Office has issued guidance (which can be found here) on the judicial approval process as well as the relevant forms to use.
The RIPA Co-ordinating Officer (Principal Solicitor) will organise for the completion of the judicial application / order form with the investigating officer and liaise with HMCTS to arrange a hearing.
The investigating officer will attend the Court hearing with the application ready to answer the JP’s questions, although the forms and supporting papers must by themselves make the case.
If the JP is satisfied that the statutory tests have been met and continue to be met and that the use of the technique is necessary and proportionate s/he will issue an order approving the grant or renewal. The JP will also check that the Council authorising officer was an appropriate designated person within the council and the authorisation was made in accordance with any applicable legal restrictions, for example that the crime threshold for directed surveillance has been met. This assessment does not remove or reduce in any way the duty of the Council’s authorising officer to determine whether the tests of necessity and proportionality have been met.
The application/order signed by the JP and the original RIPA authorisation will need to be retained by the Council and kept on the central register maintained by the RIPA Co-ordinating Officer.
The 2012 Home Office Guidance states that in most emergency situations where the police have power to act, then they are able to authorise activity under RIPA without prior JP approval. Therefore local councils may need to work with the police if faced with an emergency.
No RIPA authority is required in immediate response to events or situations where it is not reasonably practicable to obtain it (for instance when criminal activity is observed during routine duties).