The commencement of the Regulation of Investigatory Powers Act 2000 (RIPA) introduced a number of changes to previous legislation. The most significant of these was the incorporation into surveillance powers of the fundamental protections afforded to individuals by the Human Rights Act 1998. The full text of RIPA is available at http://www.legislation.gov.uk/ukpga/2000/23/contents
|Part I||Part I of RIPA is concerned with the interception of communications (the content of a communication), and the acquisition and disclosure of communications data (the who, when and where of a communication). Oversight of Part I activities, including the Secretary of State's role in interception warrantry and the regime for acquiring communications data, is provided by the Interception of Communications Commissioner, Sir Stanley Burnton. He produces his own reports on Part I activities and this area is therefore not included in my oversight.|
|Part II||Part II of RIPA provides the statutory basis for the authorisation and use of covert surveillance (both directed and intrusive) and covert human intelligence sources (undercover officers, informants etc) by the intelligence agencies and certain other public authorities. Part II regulates the use of these intelligence-gathering techniques and safeguards the public from unnecessary and disproportionate invasion of their privacy.|
|Part III||Part III of RIPA contains powers designed to maintain the effectiveness of existing law enforcement capabilities in the face of the increasing use of data encryption by criminals and hostile intelligence agencies. It contains provisions to require the disclosure of protected or encrypted data, including encryption keys. Part III came into force on 1 October 2007, after Parliament approved a Code of Practice for the investigation of protected electronic information.|
|Part IV||Part IV of RIPA provides for the independent judicial oversight of the exercise of the various investigatory powers. This includes provisions for the appointment of Commissioners, and the establishment of the Investigatory Powers Tribunal as a means of redress for those who complain about the use of investigatory powers against them. This section was amended by the Justice and Security Act 2013 to extend the powers of the Intelligence Services Commissioner so that the Prime Minister may direct me to keep under review the carrying out of any aspect of the functions of the Intelligence Services. Part IV also provides for the issue and revision of the codes of practice relating to the exercise and performance of the various powers set out in Parts I to III, as well as section 5 of the Intelligence Services Act 1994.|
|Part V||Finally, Part V of RIPA deals with miscellaneous and supplementary matters. Perhaps the most relevant to his functions is section 74, which amended section 5 of the Intelligence Services Act 1994. This relates to the circumstances in which the Secretary of State may issue property warrants, in particular by introducing a criterion of proportionality.|
Warrants and Authorisations under the Regulation of Investigatory Powers Act 2000 (RIPA)
Part II of RIPA provides a statutory basis for the authorisation of covert surveillance and covert human intelligence sources, and their use by the intelligence agencies and other designated public authorities. Part II regulates the use of these techniques and safeguards the public from unnecessary and disproportionate invasions of their privacy.
What is directed surveillance?
Surveillance is defined as being directed if all of the following criteria are met:
|It is covert, but not intrusive surveillance; It is conducted for the purposes of a specific investigation or operation;|
|It is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation);|
|It is conducted otherwise than by way of an immediate response to events or in circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under Part II of the 2000 Act to be sought.|
How is directed surveillance authorised?
Under section 28 of RIPA designated persons within each of the intelligence services and the armed services may authorise surveillance. The authoriser must believe:
|That the DSA is necessary for a specific human rights purpose (for the intelligence agencies this is in the interests of national security, for the purpose of preventing or detecting crime or disorder, or in the interests of the economic well-being of the UK; for the armed services it is, in addition, for the purpose of protecting public health or in the interests of public safety);|
|That surveillance is undertaken for the purposes of a specific investigation or operation; and|
|That it is proportionate to what it seeks to achieve and cannot be achieved by other (less intrusive) means.|
How is directed surveillance used in practice?
An example of directed surveillance could include surveillance of a terrorist suspect's movements in public, in order to establish information about their pattern of life.
What is CHIS?
A CHIS is essentially a person who is a member of, or acting on behalf of, one of the intelligence services and who is authorised to obtain information from people who do not know that this information will reach the intelligence or armed services. A CHIS may be a member of the public or an undercover officer.
A person is a CHIS if:
|a) He establishes or maintains a personal or other relationship with a person for the covert purpose of facilitating the doing of anything falling within paragraph b) or c);|
|b) He covertly uses such a relationship to obtain information or to provide access to any information to another person; or|
|c) He covertly discloses information obtained by the use of such a relationship or as a consequence of the existence of such a relationship.|
How is CHIS authorised?
Under section 29 of RIPA designated persons within the relevant intelligence service or the armed services may authorise the use or conduct of a CHIS provided that the authoriser believes:
|That it is necessary for a specific human rights purpose (for the intelligence agencies this is in the interests of national security, for the purpose of preventing or detecting crime or disorder, or in the interests of the economic well-being of the UK; for the armed services it is, in addition, for the purpose of protecting public health or in the interests of public safety);|
|That the conduct or use of the source is proportionate to what it seeks to achieve; and|
|That the information cannot be obtained by other (less intrusive) means.|
The legislation requires a clear definition of the specific task given to a CHIS, and the limits of that tasking. It also requires that the CHIS is closely managed, including having regard to his or her security and welfare. All of this must be recorded for accountability purposes and managers are required to ensure that their staff comply with the legislation.
How is CHIS used in practice?
This could include the authorisation of the conduct of an informant tasked with developing a relationship with a suspected terrorist, in order to provide information to an intelligence agency.
What is intrusive surveillance?
Intrusive surveillance is covert surveillance that is carried out in relation to anything taking place on residential premises or in any private vehicle, and involving the presence of an individual on the premises or in the vehicle, or the deployment of a surveillance device. The definition of surveillance as intrusive relates to the location of the surveillance, as it is likely to reveal private information.
How is intrusive surveillance authorised?
Under section 42 of RIPA, the Secretary of State may authorise a warrant to undertake intrusive surveillance which is necessary for the proper discharge of one of the functions of the intelligence services or the armed services.
Before the Secretary of State can authorise such action he must believe;
|That it is necessary in the interests of national security, the purpose of preventing or detecting crime or disorder, or in the interests of the economic well-being of the UK;|
|That the authorised surveillance is necessary and proportionate to what it seeks to achieve; and|
|That the information cannot be obtained by other (less intrusive) means.|
As a result of the naturally heightened expectation of privacy in the locations in which intrusive surveillance takes place, it is not necessary to separately consider whether the surveillance is likely to lead to private information being obtained.
How is intrusive surveillance used in practice?
Typically this would involve planting a surveillance device in a target's house or car, normally combined with a property warrant under section 5 of ISA.
The Regulation of Investigatory Powers (Scotland) Act: http://www.legislation.gov.uk/asp/2000/11/contents
Last updated: 11 Sep 14
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