Ten women have launched a legal action claiming they were tricked into forming “deeply personal” relationships with undercover police officers acting as a Covert Human Intelligence Source (CHIS) under Part 2 of the Regulation of Investigatory Powers Act 2000 (RIPA). The case is the first civil action to be brought before a court.
Three of the women referred to in court had intimate relationships with Mark Kennedy, who spent seven years living as an environmental campaigner. Kennedy’s deployment was made public last year after activists worked out he was a police spy.
Lawyers for the police are currently applying to have the case moved from the High Court to “a secret Tribunal”. Normally cases involving a breach of RIPA are heard by the Investigatory Powers Tribunal (IPT). Most cases heard by the Tribunal are in private and not open to the media. Very few judgements are published. Most cases are about conduct by, or on behalf of, the Intelligence Services (MI5, MI6and GCHQ). The Tribunal has the power to award damages to complainants and to quash or cancel any authorisation to do the surveillance.
Not surprisingly, the IPT is the forum of choice for the police in this case. According to a report in The Guardian:
“Monica Carrs Frisk QC, representing the police, said their argument was not about denying the women remedy, but determining the correct forum for determining their claims.The police argue the case should be heard in the investigatory powers tribunal, as it was set up specifically to consider allegations of unjustifiable surveillance by the state.They also argue they may be unable defend the case because they have a long-established policy of neither confirming nor denying the identity of undercover police officers.”
When the Kennedy case came to light, Her Majesty’s Inspectorate of Constabulary (HMIC) conducted a report into the circumstances. It concluded that, whilst undercover officers deployed into protest communities gathered intelligence which enabled the police to prevent acts of serious violence, there was serious intrusion into the lives of others, and this risk needs to be better managed in the future.
More will come about these cases especially if (as is likely) the civil case remains in the High Court. The circumstances shows the importance of all public authorities, not just the police, considering the applicability of Part 2 of RIPA , especially the CHIS provisions, very carefully when engaging staff to “go undercover”. In addition to the usual considerations of necessity and proportionality, the CHIS authorisation form requires a risk assessment to be done, together with a need to have a separate CHIS Handler and a Controller. Detailed records also need to be kept in accordance with the RIPA (Source Records) Regulations 2000 (SI 2000/2725). If these roles were carried out correctly then abuses of RIPA, as in this case, would be very rare.
Of course local authorities are very infrequent users of the CHIS process (and they certainly do not authorise CHIS operations involving sleeping with the targets!). Any potential for abuse has been minimised even further by the Protection of Freedoms Act 2012 (sections 37 and 38) which came into force on 1st November 2012. This changes the procedure for the authorisation of local authority surveillance under RIPA. From 1st 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. On 5th November, Gateshead Council received (what could be) the first Magistrates’ approval.
The case of Mark Kennedy (and others) does beg the question; Is it time the police were required to seek judicial approval for surveillance under RIPA? Should we even stop there? What about surveillance abuses by the press which have come to light as a result of the Leveson Inquiry? Is it time to RIPA it up and start again?
Act Now can help you prepare for the new RIPA process. We have an update course in December in London. If you would like advice on what needs to be done or customised in house training, please get in touch.
Finally all RIPA authorities need to revise their guidance and policy documents. See our RIPA Policy and Procedures Toolkit.