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Appendix 3.2 Guidance on the Application of the Regulation of Investigatory Powers (Scotland) Act 2000 as this relates to Noise Investigations (as provided by Renfrewshire Council)
THE REGULATION OF INVESTIGATORY POWERS (SCOTLAND) ACT 2000
Both, the Regulation of Investigatory Powers (Scotland) Act 2000 and the Human Rights Act 1998 come into force on 2nd October 2000. The Human Rights Act 1998 entitles individuals and companies to respect for their private life, family life, their home and correspondence. It also entitles them to peaceful enjoyment of their possessions. The rights contained in the Human Rights Act 1998 can however be infringed provided the method used is prescribed by law, has a legitimate aim and is necessary in a democratic society. Previously, covert surveillance within the United Kingdom was unregulated and therefore to ensure that such activities can continue in light of the Human Rights legislation the Government had introduced the Regulation of Investigatory Powers (Scotland) Act 2000. ( RIP(S) ACT)
Question - What does the RIP(S)A Cover?
Answer - Covert Surveillance
This is any surveillance carried out in a manner calculated to ensure that the persons who are the subject of the surveillance are unaware that it is or may be taking place.
There are two types of covert surveillance:
1. Intrusive surveillance - This is surveillance which involves either-
(a) the presence of an individual or of any surveillance device on any residential premises on any private vehicle or
(b) it is carried out in relation to anything taking place on residential premises or in a private vehicle by means of any surveillance device that is not present on the premises or in the vehicle.
Surveillance in terms of (b) is only intrusive if it consistently provides information of the same quality and detail as might be expected to be obtained from a device actually present on the premises or in any private vehicle.
2. Directed surveillance - this is surveillance which is covert but not intrusive.
Only the Police and the National Criminal Intelligence Service are permitted to carry out intrusive surveillance and then only for the preventing or detecting of serious crime.
Local authorities are permitted to carry out directed surveillance provided they go through the authorisation procedures detailed in the Regulation of Investigatory Powers (Scotland) Act 2000.
Directed surveillance is more properly defined in the Act as being covert surveillance which is not intrusive and undertaken for the purpose of a specific investigation or operation and which will/or may result in the obtaining of private information about a person. Private information about a person is that relating to his private or family life.
A correct and proper authorisation will provide a local authority with legal authority to carry out covert surveillance and will make the surveillance less vulnerable to challenge under the Human Rights Act 1998.
Question - Who Will Be Able To Grant Authorisation?
Answer- Directors, Heads of Service and Departmental Managers.
If you are planning to carry out any form of covert surveillance you will require to obtain authorisation from either your Head of Service or Departmental Manager i.e. Trading Standards Manager. The person granting the authorisation should be from within your Department and superior in rank to you and not involved in the investigation unless the nature of the covert surveillance falls within the category specified below.
If the subject of an internal investigation is a Head of Service or above, the authorising Officer will be the Chief Executive failing whom the Director of Corporate Services.
Question - How Do I Obtain Authorisation?
An application for authorisation must be in writing and must state:-
1. The grounds on which the authorisation is sought. Authorisation for directed surveillance will only be granted if it can be showed that the surveillance is carried out either for the protection of public health; the detection of crime; prevention of disorder; or the interests of public safety.
2. It will be necessary in the authorisation application to explain why the directed surveillance is necessary in the circumstances.
3. The identity or identities, where known, of those who are the subjects of the directed surveillance should also be specified.
4. The application form should also give an account of the investigation and an explanation of the information sought.
5. In addition, the application should indicate whether there is any potential for collateral intrusion (i.e. the obtaining of private information about others who are not the subject of the investigation).
6. It should also state whether there is the likelihood of obtaining confidential information i.e. matters which are subject to legal privilege (between a solicitor and his client), confidential personal information and confidential journalistic material.
An example of an application form and authorisation are attached.
On receipt of an application for surveillance the authorising officer must satisfy himself that the action is necessary and that one of the grounds of surveillance is satisfied. He must complete the authorisation form and in doing so must consider whether the surveillance is proportionate to what it seeks to achieve. It is essential that the decision making process is documented and the authorisation given in writing. It is recommended that the authorising officer keep a copy of the application and authorisation and a copy of both forms should be given to the applicant. A central record of authorisations requires to be maintained. These records are confidential and should be held for at least five years.
An authorisation lasts for three months and can be renewed, provided the renewal application continues to meet the criteria for authorisation. Any renewal should again be in writing and should indicate whether it is the first or second renewal. In addition, the authorising officer must cancel the authorisation if he considers the surveillance is no longer appropriate.
Urgent Surveillance
Where urgent surveillance is required it can be granted orally and will last for a period of 72 hours. It should only be granted by the authorising officer if the applicant can give good reason as to why the case demands such urgent surveillance.
Chief Surveillance Commissioner
The responsibilities of local authorities under the Regulation of Investigatory Powers (Scotland) Act 2000 will be monitored by the Chief Surveillance Commissioner and his assistants. Any complaints about behaviour of local authorities will be made to an independent tribunal set up by the Regulation of Investigation Powers Act 2000.
SPECIMEN APPLICATION FOR AUTHORISATION FOR DIRECTED SURVEILLANCE
Name of Applicant | |
Date | |
Department | |
Telephone number | |
Please provide details of the investigation for which you are seeking directed surveillance authorisation. | |
What information are you hoping to obtain through directed surveillance?? | |
Specify the name and address of the surveillance subject. | |
Specify the types of surveillance techniques which will be involved in the directed surveillance. | |
Specify the reason for the surveillance. (Delete those which are not applicable) | 1. Protection of public health
2. Prevention or detection of crime
3. Prevention of disorder
4. Interests of public safety |
Please give an explanation as to why the reasons for surveillance stated above outweigh the rights of the surveillance subject to privacy etc. | |
Is it likely that any information of a personal or private nature will be obtained during the surveillance about persons other than the surveillance subject? If yes please provide details? | |
Is there a likelihood of any information about matters between the surveillance subject and his lawyer being obtained during the surveillance? If yes please provide details. | |
Is there a likelihood that information about the surveillance subject's mental or physical health, spiritual counselling or other information of a personal nature will be obtained during the surveillance? If yes please provide details. | |
Is there a likelihood that information of a confidential journalistic nature will be obtained during the course of the investigation? | |
SPECIMEN AUTHORISATION FOR DIRECTED SURVEILLANCE
Name of authorising officer | |
Position | |
Department | |
Date Application submitted | |
Date application granted/refused. | |
Do you consider the surveillance applied for necessary? | Yes / No |
Give details as to your reasoning (Remember to consider the ground upon which the surveillance was sought) | |
Do you consider that the need for surveillance outweighs the rights of the surveillance subject i.e. for privacy? | Yes / No |
Explain why. | |
Signed ………………………………………………. Date ……………………………………..
Authorisation GRANTED / REFUSED
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