Are you driving your Investigation forward at the correct pace and at a proportionate cost or are you taking avenues which mean you will avoid surveillance at all costs as ‘RIPA’ is something that seen as being in the ‘too hard’ box?
You may think that RIPA is only for surveillance in the sense of the word of ‘having someone to watch and record the subject’s movements outside in a public place’.
You would be wrong.
Have you looked at the subjects social media profile? Facebook? Instagram? Twitter? Have you been recording your visits to these sites? Looking at the amount of times you have viewed them, is it reasonable to assume that this ‘intelligence’ is now forming an evidential part of the Investigation, giving you proportionate grounds to further your Investigation? What you’re actually doing could be described as ‘directed Surveillance’, putting you in breach of certain Human Right Articles.
Unless you have a good proportionality assessment, terms of reference or other lawful rationale for doing this, chances are you should have applied for a RIPA authority already.
Case Study 1
This case involves an Investigation into the relationship between a mother and her partner, and the mothers biological child who resides with the mother. The child has been placed into emergency care whilst the relationship aspect is Investigated, after allegations surrounding the criminal history of the new partner. Numerous checks on social media are performed before coming to the conclusion that directed surveillance is immediately required (Thursday afternoon) to prove or disprove the relationship prior to the subject being given access back to the child the following Monday. The aim of the directed surveillance is to ascertain if the relationship is ongoing (denied by the mother).
In this Investigation RIPA does come into play as Social Services are indeed carrying out their core public functions and in this case are performing them by ensuring that no criminal offences occur against the child whilst the subject is in the adult relationship. Due to the serious nature and timescales involved directed Surveillance can commence prior to obtaining a RIPA authority as this could be explained as an ‘immediate response’ case. RIPA does not require prior authorisation to be obtained by a public authority in order to carry out directed surveillance. It could be evidenced that Article 2 in the Human Rights Act for the child over rides Article 8. Even if the RIPA authority is denied at a later date, the evidence gathered may still be submissible providing all aspects of the case have been proportionately responded to, recorded and all reasonable steps taken to ensure that RIPA authority was sought at the first available opportunity. The searching of Social Media should also be included within the RIPA request as this is more than merely preparatory (a single look is acceptable, repeated viewing for updates etc could be deemed as ‘directed surveillance’) by the Investigator. Including it in the material submitted also strengthens the evidence against the subject and the rational for directed surveillance.
Case Study 2
The local council have been informed that a member of staff who is on long term sick leave for a spinal injury sustained as part of an accident at work is working ‘on the side’ at a local business. Their injury has been described as not as serious as been indicated by the employee. Numerous attempts have been made to engage with the employee, regular home visits and occupational health visits have been denied by the employee. A claim has been submitted against the Local Authority for negligence and has coincided with the employee stopping contact. The employee’s contact is now through their representative who is highlighting numerous Health & Safety at work breaches and also that their client may suffer ‘Harassment, alarm or Distress’ by any further direct contact.
In this instance RIPA does not need to be requested. The main purpose of RIPA is to ensure that the relevant investigatory powers of public authorities, such as interception of communications and various forms of covert surveillance are used lawfully and compatibly with Convention rights. One of the core functions of the Local Council is to ensure the economic wellbeing of its community and this is evidently what the Investigation is trying to establish – a potential false claim for a monetary benefit against its community.
Surveillance by public authorities (or, indeed, by anyone else) is not in itself unlawful at common law, nor does it necessarily engage Article 8 of the Convention. There is no general prohibition in RIPA against conducting directed surveillance without RIPA authorisation. A Lack of authorisation under RIPA does not necessarily mean that the carrying out of directed surveillance is unlawful.
There is no real reason why the performance of the ordinary functions of a public authority should fall within the RIPA regime. There is also nothing special about the case of the employee suspected of non-criminal conduct that cannot be covered by the ordinary law. There is no reason for the case of an employee suspected of non-criminal misconduct in relation to civil proceedings or claims to be brought within the RIPA regime. We would always however suggest adherence to the basic principles for directed surveillance as best practice surrounding the recording of decisions and proportionality. This will negate any future legal claims from legal professionals or representatives who don’t fully understand guidelines and the role RIPA was designed to undertake.