Policy on the application of the Regulation of Investigatory Powers Act 2000 ("RIPA") within the Council
- The Regulation of Investigatory Powers Act 2000
(RIPA) is concerned with the regulation of surveillance by public authorities in
the conduct of their legitimate business. Surveillance is an unavoidable part of modern public life,
but has not until now been the subject of formal statutory control. RIPA was enacted to regularise
that position and to ensure that, in conducting surveillance, public authorities have regard to The
Human Rights Act 1998 and to Article 8 of the European Convention on Human Rights – the right to a private
and family life.
- The use of surveillance is an interference with rights protected by
Article 8 of the European Convention on Human Rights and is prima facie a violation of those rights
unless the interference is in accordance with the law, is in pursuit of one or more of the legitimate
aims established by Article 8(2) and is “necessary in a democratic society”.
- The London Borough of Waltham Forest has approved a strategy for tackling
fraud and corruption, which covers reporting and investigation. However, in some circumstances the borough
may wish to use surveillance techniques. RIPA defines categories of Public Authorities regulated by
the Act together with acts of surveillance, which must be subject to a formal written procedure for
both authorisation and conduct.
- The Council is defined as a Public Authority to which the Act applies
by virtue of Section 1 of the Local Government Act 1999. The forms of surveillance that it is
entitled to authorise are covert directed surveillance and the use of Covert Human Intelligence Sources
(informants), known as CHIS.
- Covert directed surveillance means surveillance so carried out that
the persons subject to the surveillance are unaware that it is or may be taking place. Surveillance
is directed if it is covert, but not intrusive, and is undertaken for the purposes of a specific investigation,
in such a manner to obtain private information about a person, and otherwise than by way of an immediate
response to events where authorisation could not be sought. A person is a covert human intelligence
source if s/he develops a relationship with another person in order to covertly obtain information or
to provide access to information to a third party or to covertly disclose information obtained by the
use of such a relationship and the other person is unaware that the purpose of the relationship is one
of the above. The use of a CHIS must be recorded by the authorizing officer and approved by the Lead
Officer.
- In a Public Authority such as the council, only officers of the rank
of Deputy Chief Officer and above may be designated as Authorising Officers for the purposes of the
Act. No covert directed surveillance or use of covert human intelligence sources may be undertaken without
obtaining authority.
- Covert surveillance that is properly authorised will, as long as it
is carried out in accordance with the terms of the authorisation, be legitimate. The authorisation
will provide a defence to a challenge under the Human Rights Act.
- Investigations requiring the use of covert directed surveillance or
covert human intelligence sources may only be undertaken by officers of the Corporate Internal Audit
and Anti-Fraud Team (CAAFT) or by specialist investigators who are professionally
qualified and approved, engaged by the Authority.
- Authorisation to conduct covert directed surveillance or to use covert
human intelligence sources will only be given after adequate legal advice has been taken. Authorising
Officers within the council are attached as Appendix 1. An officer with responsibility
for the overall implementation of RIPA will also be identified. That officer within the council will
be the person holding the position of Chief Internal Auditor. In addition, the Head of Legal and
Monitoring Officer will provide legal advice and exercise, as necessary, in his role as Monitoring Officer.
The lead officer will maintain a central and up to date record of all authorisations across the
borough.
- Each Authorising Officer will be responsible for ensuring that copies
of forms are forwarded to the Lead Officer and that their officers are not acting unlawfully. They should
ensure they keep a record of requests as a control.
- An authorisation to conduct covert surveillance and/or to use a covert
human intelligence source may only be given by an appropriately designated officer where she/he believes
that the authorisation is necessary for a specific statutory reason as defined by sections 27-29 of
the Act and where the Authorising Officer is satisfied that all other means of obtaining evidence have
been exhausted. The authorisation will be “necessary” if the covert surveillance is “for” one of the
statutory reasons; for example in preventing fraud and if there is no other means available to the investigating
officers.
- If the Authorising Officer is satisfied that the action is necessary
s/he must then go on to consider whether the form and level of proposed surveillance is proportionate
to the desired outcome. The term “proportionate” is used here in the context of the Human Rights Act
which requires interference with a human right to kept to the absolute minimum. Where there is
interference it should be measured against the desired outcome. Interference with human rights is only
acceptable where the matter being investigated is significant and it is in the public interest to achieve
an outcome.
- In determining whether an interference is proportionate the Authorising
Officer must have regard to issues such as collateral intrusion and the obtaining of confidential information.
Collateral intrusion is interference with the human rights of persons other than the subject.
The Authorising Officer must weigh the extent to which the human rights of third parties are infringed
and whether such infringement is both necessary and proportionate in the context of the issue being
investigated.
- Authorising Officers must also assess the extent to which confidential
information about the subject will come into the Authority’s possession as a result of the investigation.
Such information may be relevant to the investigation but protected for example as a result of
legal professional privilege or it may be irrelevant but sensitive information for example medical records.
Deliberately obtaining (or the use of) confidential information may only be authorized by the
Chief Executive as laid down in Schedule 2 of the RIPA Act 2000.
- Once again the Authorising Officer is required to weigh the impact of
such a situation arising against the objectives of and purposes for the investigation. The public interest
element must outweigh the subjects own and any collateral privacy rights in order to make the use of
covert surveillance justifiable at all. The public interest will need to be substantial in order for
the use to be considered proportionate.
- Finally, the Authorising Officer should give due consideration to the
impact on the community of the use of covert surveillance methods. In particular the officer should
have regard to community confidence. The officer should consider if the circumstances of the investigation
were to become public, what the reaction of the community is likely to be and whether and to what extent
the Authority would be able to justify the use of its chosen methods.
- All requests for an authorisation to conduct covert surveillance should
be submitted by the appropriate officer to the Authorising Officer in writing using the forms attached
to this policy note as updated from time to time by the Lead Officer, and completed in compliance with
the written guidance.
- Whatever the nature of the decision taken by the Authorising Officer,
the decision should be confirmed in writing with reasons for the decision. Authorisations
should be regularly reviewed in compliance with the legislation and the reasons for extending or terminating
them should be recorded in writing.
- Authorisations must not be allowed to expire. Authorisations must be
reviewed regularly or cancelled after surveillance has been completed.
- Surveillance should be carried out according to out written procedures,
adhering to good practice and health and safety conditions. Advice may be taken from the Chief Internal
Auditor and Anti-Fraud Team. All officers involved in applying for, authorising or undertaking
surveillance will understand the legal requirements set out in RIPA and the Code of Practice. They
will personally take responsibility for ensuring the propriety of their involvement. All authorisations,
notebooks, surveillance logs and other ancillary documentation that relates to surveillance will be
maintained to the required standards and retained for three years. All documentation will be volunteered
for any management or regulatory inspection on demand.
- The lead officer will take responsibility for identifying training needs
and ensuring adherence to this procedure.
- Wilful disregard of any part of the RIPA Code of Practice or of internal
procedures shall be a breach of the Code of Conduct for council officers and Good Practice for investigators
and dealt with accordingly.
- A central record of all authorisations will be kept by the Chief Internal Auditor in her department. The record will be confidential.
Further information
- The Code of Practice can be obtained from the Chief Internal
Auditor and Anti Fraud Unit Manager or Legal Services.
- Links to the website for the Surveillance Commissioner and the Home Office can be found in the Council’s anti fraud strategy.
Designated RIPA Coordinator and Authorised Officers
Contact us
Rachael Tiffen, Chief Internal Auditor
Waltham Forest Town Hall, Forest Road
London E17 4JF
Telephone: 020 8496 4801
Email: Rachael.Tiffen@walthamforest.gov.uk
