Reena Buggal examines the new restrictions on the manner in which local authorities can obtain surveillance following changes to existing legislation due to come into force on 1st November 2012.
Sections 37 and 38 of The Protection of Freedoms Act 2012, amend the Regulation of Investigatory Powers Act 2000 (RIPA) so that from 1st November 2012 all local authority surveillance will require approval from a Magistrate.
In addition, The Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) (Amendment) Order 2012 ("the 2012 Order") amends The Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010 ("the 2010 Order") by specifying the grounds upon which authorisations can be granted.
At present, local authorities only require internal authorisation to obtain surveillance and such authorisation can be granted on the satisfaction of one ground: where it is necessary 'for the purpose of preventing or detecting crime or preventing disorder' under section 28(3)(b) of RIPA.
The media highlighted concerns in some quarters that local authorities were abusing this legislation to conduct surveillance for minor offences and in a disproportionate manner, such as investigating dog fouling and littering. Whilst it was generally agreed that surveillance was an important tool in investigating crime, it was felt the ability to conduct such surveillance was insufficiently regulated under the old framework.
The new framework – Magistrate's role
From 1st November 2012 local authorities must now obtain the approval of a Magistrate to use any one of three covert investigatory techniques namely: Directed Surveillance, Covert Human Intelligence Source (CHIS) and Accessing Communications Data. These techniques are discussed further below. RIPA does not allow local authorities to authorise any other types of covert surveillance. Magistrate approval is further required to renew a previously obtained authorisation.
The Magistrate's role is to ensure that correct procedures have been followed, the use of surveillance is proportionate to the crime being investigated and that the Serious Crime Test, referred to below, is satisfied. The Magistrate must also consider any collateral intrusion, namely the level of intrusion to any people not involved in the investigation and whether steps can be taken to mitigate against it. Once internal authorisation has been obtained it will not come into effect unless and until it is approved by a Magistrate.
Serious Crime Test
The 2010 Order as amended by the 2012 Order, amends the grounds upon which authorisation can be granted. The ground of 'preventing disorder' has been removed. In addition, Directed Surveillance can only be used in cases where the offence being investigated carries a custodial sentence of 6 months or more (the Serious Crime Test). There are exceptions when investigating breaches of the Licensing Act 2003 or the Children and Young Persons Act 1933.
Of the three types of covert surveillance referred to above, Directed surveillance is perhaps the most applicable to local authorities investigating insurance claims. Directed Surveillance concerns any surveillance that is not intrusive, is carried out for a specific investigation or operation, is likely to result in the obtaining of private information about a person and is not an immediate response to events or circumstances where it would not be practical to seek authorisation.
Investigating insurance claims: changes in practice
It is likely that any surveillance obtained when investigating a suspected exaggerated or fraudulent claim will be Directed Surveillance. The provisions of RIPA will therefore apply.
Will such surveillance satisfy the Serious Crime Test? The local authority will be investigating a suspected fraud. A conviction under the Fraud Act 2006 may result in imprisonment for a maximum term of 10 years. The more familiar route available to, and used by, local authorities will be to bring contempt of court proceedings under Part 81 of the Civil Procedure Rules. Although the CPR apply to civil contempt of court, a successful committal application can result in the criminal sanction of imprisonment up to a maximum of 2 years.
Once the request for surveillance has been authorised, following the same process as previously, Magistrate approval must then be sought:
- The local authority should contact Her Majesty's Courts and Tribunals Service administration team at the local magistrates' court to arrange a hearing date. It appears the intention is for this initial contact to be by telephone.
- At the hearing the local authority will provide the magistrate with the original RIPA authorisation and any supporting documents setting out the case. This is considered the basis of the application for approval and should therefore contain all the information that is relied upon.
- In addition to the above the local authority will need to provide a partially completed judicial application/order form. The rest of the form will be completed by the magistrate.
- It is important to note the forms and supporting papers must by themselves make the case. Any additional oral evidence not based on the written information will not be accepted.
- The Magistrate will then approve the grant or renewal or refuse to approve the grant or renewal. If the application is refused but not quashed the local authority may address the error and reapply. If it is quashed the local authority will need to seek fresh authorisation internally before reapplying.
It appears local authorities looking to carry out Directed Surveillance for the purposes of investigating a suspected fraudulent/exaggerated insurance claim will be able to satisfy the Serious Crime Test. Individual case factors will determine whether or not such surveillance is proportionate and necessary. Bearing in mind such cases are likely to be of high value and litigated, the question then becomes whether insurers can obtain surveillance on behalf of local authorities.
RIPA and its amendments apply to public bodies which insurers are not. Local authorities may not be comfortable with allowing insurers to obtain surveillance outside of the RIPA framework. Even within the RIPA framework it appears the initial authorisation process should be completed within the local authority by the prescribed officer who for a local authority is Director, Head of Service, Service Manager or equivalent. At the present time there does not appear to be a specific restriction on the Magistrate application being made by another party although this remains to be tested. What is clear is that the person appearing before the Magistrate must have a thorough knowledge of the case and the application for Directed Surveillance.
The likely impact of the amendments to RIPA will be to increase the time and money spent on investigating suspected fraudulent/exaggerated insurance claims. However, local authorities which are organised and prepared for the changes should not be impacted too greatly. Consideration of the new provisions will have to take place the moment a suspected fraud becomes apparent and early efforts should be made to gather all relevant evidence. The restrictions should not result in a fall in the use of surveillance for investigating insurance claims as such steps tend to be taken with high value claims when a serious fraud is suspected. The grounds under RIPA should therefore be satisfied and as long as the application to the Magistrate is technically and legally sound, local authorities should be able to continue using Directed Surveillance in such an important way.
Click here for Home Office guidance to local authorities in England and Wales on the judicial approval process for RIPA and the crime threshold for Directed Surveillance.
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