Agenda item

The Committee considered a report of the Director of Law and Governance, the purpose of which was to advise the Committee on the Authority’s use of the Regulation of Investigatory Powers Act 2000 (RIPA) and the Investigatory Powers Act 2016 (IPA) for the period from 1 October 2019 to 31 December 2020 and to request that the Committee reviewed the Covert Surveillance and the Acquisition of Communications Data Policy Statement relating to RIPA. A copy of the report marked ‘Agenda Item 8’, is filed with these minutes.

Arising from discussion and questions the following points arose:

(i)      Members were advised that all of the surveillance activities listed in paragraph 14 of the report related to investigations carried out by the Council’s Trading Standards Service. The level of surveillance activity during the reporting period had been relatively low and some of the investigations that utilised surveillance activity had had to be scaled back due to the additional demands on the Service due to the impact of the Covid-19 pandemic.

(ii)    Directed and covert intelligence surveillance activities could only begin once authorisation had been obtained from the Magistrates Court. Since the Covid-19 pandemic began there had been a number of issues with securing court hearings in this regard. In terms of the risks of court hearings being delayed and ensuring people were protected, it was queried whether it would be useful for a recommendation to be made to the Cabinet for a letter to be written to Government ministers to highlight the issues. The Director advised that the issues had mainly occurred at the beginning of the pandemic, but the situation had since improved, and the Council had direct contacts within the Court to be able to progress an urgent case forward if the Council was able to demonstrate this was necessary. It was also confirmed that more recently, in terms of prosecution cases, the Council was beginning to see court hearings being listed by both the Crown and Magistrates Court for those that had previously been delayed. For example, a court hearing relating to a rogue plumbing scam that had been delayed by 7-8 months, where the Council had been awaiting a decision regarding confiscation of assets, had recently been settled and the victims compensated as the defendant had been enabled to attend the hearing remotely.

(iii)   Where the Council was considering applying for directed surveillance to observe a particular premises, staff would be permitted to carry out a drive-by observation to determine surveillance capability without the need to apply for judicial approval.  

(iv)   Local authorities were only authorised to deploy covert surveillance activities if the investigation related to a serious crime such as fraud. 

(v)    In response to a query about the thresholds for conducting open source material investigations (e.g. Facebook activity) it was advised that apart from an immediate response to events, where there was an intention to obtain evidential material via open sources, the activities to obtain this material would be considered as “pre-planned” and require both internal authorisation from a Council authorising officer and judicial approval from a Magistrates Court. Paragraph 9 of the Council’s Covert Surveillance and the Acquisition of Communications Data Policy Statement reminded staff of the considerations that needed to be made when undertaking such activities. If staff were planning to obtain information through an open source surveillance process regarding a person’s identity, movements and interactions, an authorisation was still required to be sought and levels of privacy would also need to be considered. For example, there was a number of issues relating to the sale of counterfeit and unsafe products via Facebook and Facebook groups on “Marketplace”, so if staff were planning to make investigations by joining one of these groups to make purchases the level of intrusiveness would be considered as part of the authorisation process.

RESOLVED:

(a)  That the report on the Authority’s use of the Regulation of Investigatory Powers Act 2000 (RIPA) and the Investigatory Powers Act 2016 (IPA) for the period from 1 October 2019 to 31 December 2020 be noted;

(b)  That a recommendation be made to the Cabinet that the County Council’s current Policy Statement on the use of RIPA (attached as an appendix to this report) remains fit for purpose;

(c)  That the Committee continue to receive an annual report on the use of RIPA powers and report to the Cabinet on an annual basis on both the use of RIPA powers and whether the Policy remains fit for purpose.