Are you carrying out actions that could be viewed as surveillance or spying? This is called Directed Surveillance.
Or are you asking someone else to covertly make enquiries on your behalf? If so your actions could be illegal.
Government legislation allows the Council to undertake covert surveillance and use a Covert Human Intelligence Source (CHIS) only in certain limited circumstances relating to the prevention or detection of crime. This is allowable under The Regulation of Investigatory Powers Act 2000 (RIPA), However, these actions must be authorised first by a designated officer, and then by a Magistrate.
All staff should consider whether there actions and activities could be viewed as directed surveillance, and therefore require RIPA authoristaion. Any action that could be classed as covert, is for the purpose of a specific investigation and is likely to result in obtaining private information could be defined as surveillance. Officers should refer to MVDC Officers Guide for Surveillance and RIPA for further information regarding actions that could be viewed as surveillance before commencing any activity. If in doubt speak directly to the Legal/Fraud Team before commencing activity.
On occasions it may become necessary to carry out surveillance and investigatory work in order to fulfil statutory duties. The Regulation of Investigatory Powers Act 2000 (RIPA) regulates the way in which such investigatory methods are conducted so that public authorities can carry out covert surveillance on a statutory basis without breaching the Human Rights Act 1998 (HRA). Non-compliance with RIPA would result in evidence being deemed inadmissible and the Council may be subjected to a claim under the HRA 1998.
Directed surveillance crime threshold – Local authorities can only authorise use of directed surveillance under RIPA to prevent or detect criminal offences that are either punishable, whether on summary conviction or indictment, by a maximum term of at least six months’ imprisonment or are related to the underage sale of alcohol and tobacco.
If you are intending to undertake action that you think may be covered under RIPA or involve surveillance please consult the Council RIPA Policy, guidance notes and Home Office Codes of Practice:
RIPA Designated Authorising Officers
RIPA Procedures Guidance 2015
Changes to RIPA Magistrates Authorisation
Further advice can be obtained from Legal/Fraud Team.
Social Media Checking
The viewing, checking, accessing of individual social network sites by Local Authority officers is a potentially sensitive subject. However where there is identified a genuine business need to do so the checking of sites is perfectly acceptable and legal.
Officers must be cautious to avoid being viewed as overly intrusive, infringing of individual’s privacy, or acting illegally. Officers should be aware that actions such as repeated viewing of sites, or regular monitoring, or entering into a relationship (ie friends requests) would require RIPA authorisation. It is recommended that officers use the simple instructions and guidance contained within the Staff Social Media checking guidance.
Covert Human Intelligence Source (CHIS)
CHIS can be generally described as an informer. This involves an officer creating or using a personal relationship in order to extract private information covertly. Staff should be careful not to take actions that could be viewed as creating a CHIS relationship. For example requesting a member of public who reports an offence or incident to conduct further enquires on your behalf, or asking another member of staff to monitor someone else.
Further guidance can be obtained from Legal/ Fraud Teams. If a CHIS relationship is created officers must complete the relevant forms see CHIS forms. Further guidance is available in the Home Office CHIS Codes of Practice.
CHIS Application for use of CHIS
CHIS Review for use of CHIS
CHIS Renewal of authorisation form
CHIS Cancellation of CHIS form
Authorisation for RIPA
Any activity defined within RIPA must receive prior authorisation from one of the Council’s Authorised Officers and obtained approval from Magistrates.
RIP 1 – Application Directed Surveillance
RIP 2 – Renewal Directed Surveillance
RIP 3 – Cancellation Directed Surveillance
RIP 4 – Review Directed Surveillance
Home Office Guidance on Judicial Review and Crime Threshold
Approval of Local Authority Authorisations under RIPA by a Justice of the Peace (Magistrates Authorisation).
A local authority who wishes to authorise the use of directed surveillance, acquisition of Communications Data and use of a CHIS under RIPA will need to obtain an order approving the grant or renewal of an authorisation or notice from a Justice of the Peace.
In summary, you must complete RIP1 application form, obtain authorisation from a MVDC Authorising Officer, and then complete judiciary review form, arrange court attendance and obtain authorisation from magistrates
Further general guidance can be obtained from the Home Office website and the Investigatory Powers Commissioner’s Office website.
Forms to be used to request RIPA authorisation:
RIPA Applicant Guidance NAFN webinar presentation
RIPA Designated Officer and SRO Comms Guidance webinar NAFN presentation
RIPA Necessity Proportionality and Collateral Intrusion explained
Non-RIPA Directed Surveillance Requested
Sometimes you may wish to undertake surveillance activity that is not covered by RIPA legislation. This could be for an offence that does not meet the crime threshold, or for an internal staff related matter. This is allowable however you should still consider all of the proportionality and necessity that you would for a RIPA application. You should also complete a RIPA style application form, and obtain authorisation from a RIPA Authorising Officer.
Communications Data Access
Local authorities are able to access an individual’s communications data when undertaking an investigation into a criminal offence. This power is allowed under RIPA but can only be performed by the Councils’ Single Point of Contact (SPOC).
The National Anti Fraud Network (NAFN) act as SPOC for the Council for these purposes. Requests to access communications data are made via the NAFN website. NAFN will provide a court pack for any application agreed, which can then presented to magistrates for judicial review. Any enquires regarding accessing the service provided by NAFN should contact the Fraud Team. More information regarding SPOC roles and powers, and NAFN guidance on making an application:
Telecommunications Data Access Introduction
Communications Data Code of Practice 2018