What are local authorities’ powers of surveillance in investigations?

Local authorities investigate offences in a wide range of areas including trading standards, benefit fraud, environmental health, anti-social behaviour, licensing and more recently breach of COVID regulations. The local authority have power, as part of their investigations, to undertake surveillance. Such power is based upon the requirements set out in the Regulation of Investigative Powers Act 2000 (RIPA) and associated Codes of Practice, Orders and Guidance.

RIPA limits local authorities to using the following techniques for the purpose of preventing or detecting crime:

• Directed surveillance
• Covert Human Intelligence Source (CHIS)

These techniques can only be used where it is considered necessary and proportionate. Before being used they must be approved by an authorised officer or designated person within the local authority.

The local authority does not have power to carry out intrusive surveillance (e.g. planting a listening device in an individual’s private vehicle or residence). Only the police, and other law enforcement agencies, can carry out intrusive surveillance.

Overt surveillance

Most surveillance carried out by the local authority will be conducted overtly. RIPA authorisation does not apply to overt surveillance, only to covert surveillance. Overt surveillance will involve local authority officers behaving in the same way an ordinary member of the public would do, e.g. conducting a test purchase, or will be openly going about council business, e.g. a community warden on patrol. Essentially their actions will have nothing secretive or hidden about them.

Covert surveillance

Covert surveillance, as defined by S26(9)(a) of RIPA, is where an action is carried out in a manner that is calculated to ensure that the surveillance subject is unaware of it.

Directed surveillance

Directed surveillance is covert surveillance, within the remit of the local authority. It is where surveillance is undertaken for the purpose of a specific investigation or operation in such a manner that is likely to result in the obtaining of private information about a person and is not carried out in an immediate response to events which would otherwise make seeking authorisation unreasonable (S26(2) of RIPA). An example of directed surveillance would be a planned test purchase where the officer has a hidden recording device to record information which might include private life information of the person being investigated.

Covert Human Intelligence Sources (CHIS)

A person will be regarded as a CHIS if they establish or maintain a personal relationship for the covert purpose of using that relationship to obtain information, for example and undercover officer. A person is not a CHIS, and RIPA therefore would not apply, if they are simply a member of the public volunteering information either informally or via a designated contact number for the provision of that information.

Necessity and proportionality

Covert techniques must be considered necessary and proportionate. To be considered necessary the authorising officer must believe it is needed for the purpose of prevention or detection of crime. This includes not only for prosecution but also to avert, end or disrupt the commission of an identifiable criminal offence.

In respect of proportionality the authorising officer must balance the seriousness of the intrusion into privacy against the seriousness of the offence and whether the information can be obtained by other means (e.g. could overt methods be used). Each action should not be disproportionate, arbitrary or excessive in the overall case circumstances.

If you have any questions on the contents of this article, please contact Rebecca Utton on 01603 542749 or another member of the Regulatory and Corporate Defence Team.