The use of surveillance in criminal investigations has been an effective method for many years and has been used by the police, trading standards and other agencies successfully in the fight against crime.
The Regulation of Investigatory Powers Act (RIPA) came into force in 2000 and introduced a framework to regulate the use of surveillance powers including directed surveillance, intrusive surveillance, the use of Covert Human Intelligence Sources (CHIS) and access to communications data.
RIPA also outlined when an authorisation is necessary and the grounds are:
(a) in the interests of national security;
(b) for the purpose of preventing or detecting crime or of preventing disorder;
(c) in the interests of the economic well-being of the United Kingdom;
(d) in the interests of public safety;
(e) for the purpose of protecting public health;
(f) for the purpose of assessing or collecting any tax, duty, levy or
other imposition, contribution or charge payable to a government department; or
(g) for any purpose (not falling within paragraphs (a) to (f)) which is specified for the purposes of this subsection by an order made by the Secretary of State.
In 2012 the Protection of Freedoms Act introduced changes to the way in which local authorities could apply for and use surveillance powers. It introduced the criminal threshold; to qualify, offences had to carry a minimum term of six months imprisonment or relate to the underage sale of alcohol or tobacco.
In addition to the criminal threshold the Protection of Freedoms Act also changed the way in which local authorities could apply for surveillance authority. In relation to directed surveillance it required local authorities to apply for judicial authority through the courts.
At the time it also introduced judicial authority for access to communications data but this changed through the introduction of amendments to the Investigatory Powers Act. Access to communications data is now authorised at a senior level within the local authority and submitted via the National Anti-Fraud Network to the Office for Communications Data Applications.
Staying within the rules
Surveillance is a proven method of obtaining evidence of criminal offences and offenders, and can be used in evidence at trial to good effect. There are, however, strict rules around the use of such powers as they interfere with the private lives of individuals as outlined in the Human Rights Act. Therefore all such activity must be proportionate to the matter under investigation, meet lawful requirements and must be necessary.
The first question any investigator should ask themselves is: can the information be obtained by any less intrusive means? If the answer is yes, then surveillance is not appropriate.
So what aspects of RIPA can local authorities use as part of their investigative toolkit? First of all they can conduct directed surveillance, which can include the monitoring of someone’s movements and the direct monitoring of a building or premises. Directed surveillance is conducted as part of a specific investigation and is planned and carried out ‘in such a manner as is likely to result in the obtaining of private information about a person’.
Responding to immediate events is not considered to be directed surveillance as it is not planned or part of a specific operation. Investigators are not entitled to conduct intrusive surveillance which would obtain evidence or intelligence from inside a private residence being used as a dwelling.
This power is only available to the police and security services. Intrusive surveillance is directed surveillance that involves either residential premises or a private vehicle. So, for example, following a suspect as part of an operation would be directed surveillance. Placing a camera or listening device in someone’s house would be intrusive surveillance.
Setting up a camera to observe a premises is lawful but if it is a private dwelling/vehicle it cannot be set up so as to see inside that premises.
Public-facing cameras, such as local authority CCTV cameras, can also be used. If these are used to target an individual and their movements then this must be authorised under the Act.
The introduction of the Automatic Number Plate Recognition system brought with it many benefits in the fight against crime and it has been well publicised over the years. The use of road networks by criminal gangs is well known and targeting them using ANPR is a legitimate technique. Local authorities can use this technology to track suspects in real time but again, this requires authority under the Act.
Another benefit of RIPA is the ability to apply for communications data in relation to suspects. Local authorities can apply for subscriber and payment details (Entity Data) but not the content of any calls or text messages (Event Data). This is an excellent way to build up a picture of criminal networks and the use of an analyst to interpret the data is advisable.
The use of CHIS has become more widespread over the years since RIPA was introduced and the Act allows local authorities to apply to the courts for authorisation to use such resources in criminal investigations. A CHIS is someone who acts covertly to set up and maintain a relationship with another person without that other person knowing what they are doing. The CHIS then reports back to the investigator/handler with any information they have obtained.
Applications for Directed Surveillance and the use of CHIS must be through the courts and if authorised the applications last for three months for Directed Surveillance and up to 12 months for a CHIS.
The use of surveillance powers can result in evidence being obtained at an early stage of an investigation and there is no doubt that when used correctly such powers are one of the most effective in tackling crime.
However, with the use of such powers comes a high level of responsibility and accountability. The public rightly expect privacy in their lives and therefore such powers must be used only when it is appropriate to do so. Therefore remember that if you intend to use such powers they must be used in a proportionate, lawful, accountable and necessary manner.
Visit tradingstandards.uk/cppdtest to complete the question and answer section of this module.