First Magistrates’ Approval of RIPA Surveillance

Gateshead Council MAY HAVE become the first local authority in the country to successfully obtain Magistrates’ approval for covert surveillance under new laws which came into force on 1^st November 2012.

Chapter 2 of Part 2 of the Protection of Freedoms Act 2012 (sections 37 and 38) changes the procedure for the authorisation of local authority surveillance under the Regulation for Investigatory Powers Act 2000 (RIPA). From 1^st November, local authorities have been required to obtain the approval of a Magistrate for the use of any one of the three covert investigatory techniques available to them under RIPA namely Directed Surveillance, the deployment of a Covert Human Intelligence Source and accessing communications data.

The Home Office has now published its RIPA Magistrates’ Approval Guidance both for local authorities and the Magistrates’ Court. However until recently, no council had reported a successful application to the Magistrates. We believe, Gateshead Council is the first to do so.

Colin Howey, Senior Trading Standards Officer, explains what they did:

“Like most authorities we were a bit anxious about the new RIPA regime. Whilst we wanted to continue to use covert surveillance techniques in a necessary and proportionate manner, we were concerned about the cost and resource implications of the new Magistrates’ approval process.

Following a full day training workshop we were more confident about what was required. But the new process was still untested.

On 5^th November though we obtained what may well be the country’s first judicial approval of a RIPA authorisation. Gateshead Magistrates’ Court approved our use of Directed Surveillance to investigate some serious trading standards offences.

We carefully followed the procedure as set out in the Home Office RIPA Magistrates’ Approval Guidance.  We were also careful to ensure the surveillance was necessary on the amended grounds set out in The Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) (Amendment) Order 2012, SI 2012/1500  which also came into force on 1 November 2012. This makes Directed subject to a new Serious Crime Test.

Once we obtained the internal authorisation in the usual way we contacted the Gateshead Magistrates’ Court to arrange a hearing.  They asked us to e mail through the original RIPA authorisation form as well as the completed judicial application/order form.

The hearing was attended by the investigating officer and the Council Solicitor. The court was also aware that it was the first RIPA application it had received so a District judge heard the application advised by the Clerk of the Court.  The hearing was in private. The judge considered the RIPA authorisation and the judicial application/order form.  He asked one or two relevant questions to satisfy himself that the surveillance was necessary and proportionate and then signed the judicial order form

The whole thing was relatively straightforward. It only took the judge fifteen minutes to consider and approve the application.

My tips for those who need to make a similar application are:

Finally all RIPA authorities need to revise their guidance and policy documents. See our RIPA Policy and Procedures Toolkit.

Author: actnowtraining

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