Local authorities and surveillance
For the first time in its history, the Investigatory Powers Tribunal (IPT) has published a ruling concerning a local authority’s use of surveillance powers under part 2 of the Regulation of Investigatory Powers Act 2000 (RIPA).
Poole Borough Council suspected that Jenny Paton may have lied about living in the catchment area of a sought-after primary school in Dorset in order to get a place there for one of her children. Therefore, it conducted Directed Surveillance of the family for three weeks in 2008. This included covertly monitoring the movements of Miss Paton and her children and partner, as well as their car. The family made complaints to the IPT who found (Jenny Paton and others v Poole Borough Council (2010) IPT/09/01/C) that due regard had not been taken of the provisions of RIPA and consequently the council had breached the family’s rights under article 8 (right to privacy) of the European Convention on Human Rights (ECHR) .
Directed surveillance is defined by Section 26(2) of RIPA as covert surveillance undertaken for a specific investigation in a manner likely to result in the obtaining of private information about the target(s) or others. Covert surveillance done as an immediate response to events is not directed. The IPT considered the council’s surveillance authorisation in the light of section 28(2) of RIPA, which sets out when directed surveillance can be authorised. It ruled that three questions needed to be asked. The first is, for what purpose was the authorisation sought and granted?
Since January 2004, local authorities can only authorise directed surveillance if it is necessary ‘for the purpose of preventing or detecting crime or of preventing disorder’ (section 28(3)(b)). The IPT asked itself, what is the crime that the complainants could have committed? The council stated that the possibility of an offence under the Fraud Act 2006 was considered before the authorisation was granted. It argued that section 2 of that act, read with sections 1 and 5, was capable of covering the case of giving false information to secure a school place.
The IPT did not see it as necessary to determine whether there was actually an offence under the act. In any event, the children could not have committed the offence, yet they were still the subject of surveillance. As for Ms Paton, the IPT ruled that the council had not established that, even if the information supplied to the council by her about the family’s ordinary residence was false (which it accepted it was not), that could have amounted to a criminal offence, or to a reasonable belief that such an offence was or would be committed under the act, that being the only possible source of criminal offence that was considered when the authorisation was granted. The IPT also took account of the fact that the surveillance was done after the cut-off date when children are required to be resident in the school’s catchment area. Therefore, even if the information were gathered it would not have proved any offence.
The second point to note here is that the IPT interpreted section 28(3)(b) as requiring the surveillance to be for the predominant purpose of preventing or detecting crime. Having considered the authorisation form and the circumstances surrounding it, it determined that the council’s purpose was to detect whether the complainants were ordinarily resident in the catchment area of the preferred school and, if they were not, to prevent one of the children from taking up a place at that school.
In coming to its conclusion, the IPT gave weight to the complainants’ contention that the sole or predominant purpose of the surveillance was to implement, maintain and enforce the catchment area element of the council’s schools admissions policy, which is not expressed in the application form or the booklet to be supported by a criminal sanction. The only effective sanction threatened, and in fact applied for misinformation, was denial or withdrawal of a place at the school.
Furthermore, there was no evidence from the council of any real intention or likelihood of it prosecuting the target of the surveillance for a criminal offence against the general criminal law. This was shown by the fact that no warning or caution was given about the possible commission of a criminal offence by supplying incorrect information, and there was no evidence of any instance of the council bringing, or even threatening to bring, a criminal prosecution. The surveillance itself rather than the threat of a prosecution was used by the council for the purpose of deterring parents from obtaining school places by giving false addresses.
This ruling suggests that those doing directed surveillance must be satisfied that they are investigating a criminal offence and the surveillance is necessary to prevent or detect that offence. There must be a settled intention to prosecute using the evidence obtained through surveillance.
The second question is, did the authorising officer believe that the authorisation of directed surveillance of the complainants was necessary on the ground of preventing or detecting crime? The IPT ruled that this had not been considered, especially in the case of the three children. There was no consideration whether it was necessary to put them under surveillance in order to prevent or detect a crime by their mother. Nor was there any evidence that the council had, prior to authorisation of directed surveillance, considered whether other measures were feasible and sufficiently effective to enable admissions information to be verified when suspicions were aroused following inquiries. The IPT concluded that consideration should have been given to such measures prior to authorisation. The third question is, did the authorising officer believe that the directed surveillance was proportionate to what was sought to be achieved by carrying it out? The points made on behalf of the complainants were that the article 8 right was a fundamental one; that the public interest in this case in preventing or detecting the giving of a false address to the council to gain a school place was not of a high order and was not a pressing social need; the surveillance measures designed to attain the objective were not rationally connected to it, involving the use of means that were disproportionate, extending over a period of 22 days and including children as targets; and that the relevant date for determining ordinary residence had already passed when the authorisation was granted and the surveillance was carried out.
The IPT concluded that the surveillance was not proportionate and could not reasonably have been believed to be proportionate. In particular, no consideration was given and no allowance was made, in the setting of conditions of the surveillance, for the fact that three of the targets were young children who were not believed to be parties to a suspected crime. The crime could be prevented or detected without the children themselves being made targets of the surveillance. It followed from the IPT’s determination of the above points that the council was not entitled to rely on the authorisation granted on 8 February 2008 to justify the lawfulness of the admitted directed surveillance.
Clearly this ruling has implications for local authorities and all those carrying out directed surveillance under Part 2 of RIPA. Officers completing the RIPA authorisation application forms, as well as authorising officers, must have a sound understanding of the human rights concepts of necessity and proportionality and be able to explain their conclusions fully within the forms.
In July 2010, home secretary Theresa May announced a RIPA review to be carried out by Lord McDonald QC (a Liberal Democrat peer and former director of public prosecutions). It will cover ‘the use of [RIPA] by local authorities, and access to communications data in general’ and is due to report back in the autumn. The outcome may well be a foregone conclusion, bearing in mind the commitment made on page 12 of The Coalition: Our Programme for Government: ‘We will ban the use of powers in the Regulation of Investigatory Powers Act (RIPA) by councils, unless they are signed off by a magistrate and required for stopping serious crime.’
Ibrahim Hasan is a solicitor and director of Act Now Training