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Lawful Surveillance

January 15, 2016

Arguably sections 27 and 80 are the most important provisions in the Regulation of Investigatory Powers Act 2000 (there are similar provisions for Scotland and Jersey) but which have not received the consideration they deserve and there is little judicial guidance. Some interest has been piqued recently as hidden away in schedule 8 of the Investigatory Powers Bill (that’s page 227 of the 299 page Home Office bundle published on the BIll) a similar provision appears.

Section 80 is in the following terms:

80       General saving for lawful conduct.

Nothing in any of the provisions of this Act by virtue of which conduct of any description is or may be authorised by any warrant, authorization or notice, or by virtue of which information may be obtained in any manner, shall be construed—

(a) as making it unlawful to engage in any conduct of that description which is not otherwise unlawful under this Act and would not be unlawful apart from this Act;

(b) as otherwise requiring—

         (i) the issue, grant or giving of such a warrant, authorisation or notice, or

         (ii) the taking of any step for or towards obtaining the authority of such a warrant, authorisation or notice

         before any such conduct of that description is engaged in; or

         (c) as prejudicing any power to obtain information by any means not   involving conduct that may be authorised under this Act.

Section 80 has been considered in a limited number of cases. In C v Police and Secretary of State, IPT/03/32/H, a case before the Investigatory Powers Tribunal the IPT said this at paragraphs 62 and 63:

“First, some general observations. Although RIPA provides a framework for obtaining internal authorisations of directed surveillance (and other forms of surveillance), there is no general prohibition in RIPA against conducting directed surveillance without RIPA authorisation. RIPA does not require prior authorisation to be obtained by a public authority in order to carry out surveillance. Lack of authorisation under RIPA does not necessarily mean that the carrying out of directed surveillance is unlawful.

“This is re­inforced by a general saving for lawful conduct in section 80 of RIPA.”

The IPT at paragraph 83 referred to the scheme under RIPA as a “voluntary system of self­ authorisation”.

There is other support for this view in the new Code of Practice on Covert Human Intelligence Sources, paragraph 2.10, “…public authorities are not required by the 2000 Act to seek or obtain an authorisation just because one is available.”

This is really fundamental. RIPA was created for the purposes of creating a framework for authorisation of – a legal basis for – covert surveillance in order to comply with the UK’s obligations under the European Convention on Human Rights. Those affected by alleged unlawful surveillance have the right to go to the IPT for redress. There is an argument that ought not to be the province of the criminal courts. Indeed in some cases the jurisdiction of the civil and criminal courts is ousted and the IPT is the only forum for the determination of complaints. Section 80 has a particular significance in relation to applications to exclude evidence and applications to stay proceedings.

Unsurprisingly the Office of the Surveillance Commissioner has had something to say about s 80. In his report for 2009-2010 Sir Christopher Rose, the former Chief Surveillance officer, said this:

“The fact historically, there has been no legal challenge to the way in which a public authority conducts its covert procedures does not mean that the procedures are unchallengeable, nor is the absence of such a challenge mitigation for poor compliance. On the contrary, if a challenge is made, it is unlikely that a trial judge will be sympathetic to an argument that the public authority was entitled to do things in its own way if that way is at variance from published OSC guidance or comment in an OSC inspection report. The purpose of my inspection is to highlight the risk of being challenged for non-compliance. It is not acceptable to act in a non-compliant way unless caught. [RIPA] requires certain activity to be authorized by competent staff and it should be.”

This is an interesting observation since there is no reported case where a trial judge was in fact assisted by s 80 in exercising his or her discretion. Furthermore, insofar as it may assist, this has to be in favour of not excluding evidence since, as the provision makes clear (well as clear as RIPA makes anything clear), unless something is otherwise unlawful by virtue of the Act no conduct will be unlawful as a result of a failure to obtain an authorisation. For this reason alone, there is an argument that it should form part of the prosecutor’s armoury when meeting defence challenges. All that said, the Chief Surveillance Officer is quite right to emphasise that notwithstanding s 80, authorisations should be sought where appropriate. However this is for the purposes of compliance: to avoid adverse rulings before the IPT and for the purposes of annual inspections.

This leads conveniently to s 27. It provides:

27       Lawful surveillance etc.

         (1)Conduct to which this Part applies shall be lawful for all purposes if—

         (a)an authorisation under this Part confers an entitlement to engage in that conduct on the person whose conduct it is; and

         (b)his conduct is in accordance with the authorisation.

        (2) A person shall not be subject to any civil liability in respect of any conduct of his which—

         (a)is incidental to any conduct that is lawful by virtue of subsection (1); and

         (b)is not itself conduct an authorisation or warrant for which is capable of being granted under a relevant enactment and might reasonably have been expected to have been sought in the case in question.

        (3)The conduct that may be authorised under this Part includes conduct outside the United Kingdom.

         (4)In this section “relevant enactment” means—

         (a)an enactment contained in this Act;

(b)section 5 of the Intelligence Services Act 1994 (warrants for the intelligence services); or

(c) an enactment contained in Part III of the Police Act 1997 (powers of the police and of officers of Revenue and Customs)

To be clear s 27 creates a shield against allegations of non-compliance where (a) an authorisation has been obtained and (b) the conduct engaged in stays within that authorised. Note it is lawful for all purposes. It has not been tested yet whether this acts as an estoppel or prohibition to an application by the defence to exclude under s 78 but on the face of it, that may be its effect. Of course, it may require a determination of whether the conduct has stayed within the limits of the authorisation but it remains a proper resource open to prosecutors to use.

It almost certainly will involve some disclosure of authorities. The Court of Appeal has recently held in R v Palmer [2014] EWCA Crim 1681 that, subject to the usual test for disclosure being met, there is nothing wrong with this in principle, subject of course to redactions.

The judiciary has not grappled with sections 27 and 80 in any detail. Mr Justice Tugendhat in the case is AJK and others v Commissioner of Police for the Metropolis and others [2013] EWHC 32 (QB) at paragraph 167 said this, “[there is a] distinction drawn between lawful conduct (which, by s.80, does not require authorisation) and unlawful conduct, which does require authorisation, if it is to become lawful pursuant to s.27. This distinction raises difficult issues, some of which were not canvassed in argument before me”.

This with respect to the learned judge – who in any event makes it clear the provisions are complex – may not be correct. Section 80 does not make it a requirement to authorise or take steps to authorise any conduct before it is engaged in. Unlawful conduct remains unlawful – this does not include surveillance or use and conduct of CHIS – it does not make it unlawful to engage in such conduct nor does it make it a requirement to seek authorisation. An authorisation for the purposes of s 27 makes it lawful for all purposes (including criminal proceedings) providing the conduct stays within its boundaries.

Worryingly none of the reported decisions on applications for the exclusion of evidence and stay of proceedings refer to the provisions. As to the former, the position remains that a breach of Article 8 does not give rise to grounds for exclusion: for the most recent decision on this in the context of alleged breaches of RIPA see: R v Khan and others [2013] EWCA Crim 2230. As to the latter, the principles for staying proceedings have been most recently re-stated by the Supreme Court in R v Maxwell [2010] UKSC 48. Alleged breaches of RIPA fall into the Category 2 cases. The principles are: (i) the threshold is very high; (ii) it requires an evaluation of the competing interests where the court must weigh in the balance trying those who commit offences and not conveying the impression the end is justified by any means; (iii) a stay should not be used as a disciplinary sanction; (iv) there has to be an abuse of executive power amounting to illegality; and (v) the nature of the conduct must usually be deliberate, negligent or reckless conduct would not normally be enough to reach the threshold.

What is clear is that an understanding and application of s 80 may defeat an allegation of illegality and is a complete answer to any attempt to meet the already high threshold in cases where a stay is sought. Again this has yet to be decided.

There is one caveat. In cases where entrapment is or may be alleged, compliance has been identified as an important aspect of the test for a stay: see R v Moore and Burrows [2013] EWCA Crim 85.

Key practice points arising out of the provisions and cases are:

  1. A failure to authorise surveillance or use and conduct of CHIS does not in principle give rise to unlawfulness.
  2. It is however an issue of compliance.
  3. Where allegations of unlawfulness are made the court should be referred to ss 27 and 80.
  4. A properly authorised operation that has stayed within its limits should prevent an application for exclusion under s 78 PACE.
  5. An unauthorised operation is unlikely to meet the criteria for an application to stay proceedings but special consideration is required in cases where allegations of entrapment arise.

© Simon McKay (2016). Please ask for my permission before using or copying the material contained on this blog. If you do attribute it to me with a link to the original content. This is opinion, not legal advice.

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