Ibrahim Hasan looks at the key changes in the new RIPA Codes of Practice for Surveillance and Covert Human Intelligence Sources (CHIS).
In August 2018 the revised Codes of Practice for Covert Surveillance and Property Interference and Covert Human Intelligence Sources (CHIS) were published. These contain substantial changes and additions which public authorities conducting surveillance under Part 2 of the Regulation of Investigatory Powers Act 2000 (RIPA) need to understand.
The codes provide guidance on when an application should be made for a RIPA authorisation, the procedures that must be followed before surveillance activity takes place and how to handle any information obtained through such activity. They are admissible as evidence in criminal and civil proceedings. Any court or tribunal considering such proceedings, including the Investigatory Powers Tribunal, as well as the Investigatory Powers Commissioner’s Office, responsible for overseeing the relevant powers and functions, may take the provisions of the codes into account.
Many of the changes in the revised codes reflect best practice guidance published in the OSC Procedures and Guidance Document, observations and commentary in OSC annual reports, and advice and guidance provided during inspections. The changes include amendments to the role of the Senior Responsible Officer and a new error reporting procedure. The codes also reflect developments in surveillance and monitoring – such as use of the internet and social media, drones, tracking devices etc. Here is a summary:
- Private information– further information and guidance relating to internet material and investigations.
- Tracking devices– clarification and further information.
- Social media and internet research – Substantial new sections providing clarity and detail (read our blog post for more on this topic).
- Drones – A section providing guidance on the use of Aerial Surveillance Devices.
- Intrusive surveillance– A further developed explanation.
- General Observation Duties– Expanded section to include such activity on the internet.
- Surveillance not core function– A section relating to covert surveillance for ‘non RIPA purposes’ (More on this topic in our blog post).
- CCTV and ANPR– Additional information relating to the deployment of these technologies and the relevant codes and oversight (More on this topic).
- Necessity and proportionality– Expanded section.
- Authorisation– New section explaining the requirement to present the circumstances in a fair and balanced manner.
- Collateral intrusion– Further explanation is provided.
- Handling of material obtained– Section relating to safeguards, retention and destruction of material.
- Third parties– more clarity relating to working with third parties, including those that are not public authorities.
- Reviews– Further detail relating to the review process requirements.
- Senior Responsible Officer– The section relating to the role of the SRO has been altered substantially and includes amendments to the role and responsibilities.
- Covert Surveillance of a CHIS– A new section dealing with this tactic.
- Renewals– A section that provides more information about the detail required.
- Record Keeping– This section has been expanded to provide more detail of requirements.
- Error Reporting– A new requirement introduced in the Investigatory Powers Act 2016. This section describes the types of errors and the reporting requirements, and how there is expected to be processes to identify if errors exist.
- Privileged Information– A new section with more detail relating to safeguard requirements for such information.
- Other Legislation– There is now a new section referring to the Criminal Procedure Investigations Act 1996and evidence.
- Data Protection– A new section relating to the handling and management of material and referring to the Data Controller. (Read our blog post on GDPR and employee surveillance).
- Dissemination of Material– A new section relating to this aspect.
- Copying of Material– A new section relating to this aspect.
- Storage of Material– A new section relating to the secure storage of material obtained.
- Destruction of Material– Another new section relating to this aspect.
- Confidential or Privileged Material– This section has been expanded to provide more detailed information about requirements.
- Oversight– Section amended to reflect the role oversight role of the Investigatory Powers Commissioner’s Office, and their access to systems and material in order to fulfil the oversight role. (More on this subject here) If you have a RIPA inspection coming up, read our guide
- Complaints– This section is completely altered and provides additional information.
On 30 April 2018 the Investigatory Powers Tribunal awarded £46,694 to an individual who had complained about surveillance by British Transport Police (BTP). The determination was that that surveillance was unlawful as it had been conducted without a RIPA authorisation. BTP was criticised for amongst other things, lack of training and awareness of those involved in surveillance.
Ibrahim Hasan is a solicitor and director of Act Now Training. This article first appeared on the Act Now Blog. Information on the company's courses can be found on Local Government Lawyer's courses and events section.
Act Now's RIPA courses have been completely revised by its RIPA expert, Steve Morris, to include an explanation of the new codes of practice and recent developments. If you would like an in house refresher training for your staff, please get in touch.