Protection of Freedoms Bill

Memorandum submitted by Mrs S J Lyth (PF 83)

S38 Judicial Approval – In favour of an amendment

 The Bill states that upon receipt of the application the magistrate can either approve or quash the authorisation. I have reproduced below the relevant part of the Bill below.

"(3) Where, on an application under section 32A, the relevant judicial
authority refuses to approve the grant of the authorisation concerned,
the relevant judicial authority may make an order quashing the
authorisation. "

I have re-read the Bill but cannot find any powers given to a magistrate to amend the authorisation should they agree in principle to the authorisation but where they want to change or reduce the parameters of the authorisation to, for instance, bring it to a more proportionate level.

 So for example, where it is proposed to use too many surveillance devices, too intrusive a device (eg powerful zoom lens on a camera or other video equipment), too many officers or vehicles, or some other such matter the court can reduce the level of the surveillance. If there is an error that needs correcting the court can correct it.

 If every time the court disagrees with the authorisation that came before it they can only make an order to quash it , in some cases, it will necessitate some unnecessary administrative delays when it is quashed , sent back and resubmitted in an amended form.

I have been unable to find a rule amongst the Civil Procedure Rules that would assist; and the legal officer or court clerk who advises the magistrates would most certainly follow the letter of the law in the proposed Act rather than try to skate outside the law using alternative or general rules. If the the magistrate did make amendments and the covert surveillance or use of CHIS proceeded under the amended authorisation, the court order, and thus the authorisation and the authorised activity could be challenged later as having been done unlawfully. It would not in these circumstances be ‘saved’  by section 27 RIPA.

That is surely not what the LGA had in mind when they lobbied Parliament for a smooth administrative process? 

 When an authorising officer authorises covert surveillance ie 'directed surveillance ' in this instance, he/she must set out clearly in the authorisation, inter alia, the parameters within which those undertaking the surveillance should operate. The length of time is one of those parameters. In short, the parameters include the who, when, what, how and where; namely the practical limits of the task.

An example

So, for instance, the surveillance may be of a person suspected of benefit fraud in order to see where they go when they leave their home of a morning. Let us assume that the intelligence is that they are working and earning money that they have not declared. (Let us also assume for this purpose that the offence being investigated is one under section 111A (3) Social Security Administration Act 1992 (see Appendix 1) to take it into the realms of crime punishable by over 6 months to accommodate the second review proposal). It must also be assumed for the purpose of this example, that despite the intelligence there is no way of approaching anyone for whom he is suspected of working for a statement because the identity of the employer is as yet unknown and there are no other overt means of obtaining the information. It must also be assumed that the subject has been approached directly but has denied all knowledge of any employment.

An authorising officer may give an authorisation which allows two officers in an unmarked vehicle to observe the house [at an appropriate time during the morning]. He will state the address and approximately where the vehicle would be positioned. He will specify that the vehicle will be positioned a reasonable distance away so as not to attract attention and the officers are to be equipped with the means to create a surveillance log and a digital camera,{ which he needs to confirm is in full working order}, to obtain photographic evidence. He would authorise them to follow the subject when leaves his house and when he arrives at his suspected work-place. He would authorise them to take such photographs as are necessary to obtain sufficient evidence that the individual looks as if he is in employment. He would make directions about collateral intrusion, for example, he would usually state that they are to take as few photographs involving other workers/people who are not under surveillance as possible except where it cannot be avoided, and that their images are not to be used unless it is necessary and they will only be used for the purpose of this investigation.

He would then have to state the time for the surveillance to commence and the time for it to cease and the statutory requirement is three months. So if it is granted at 10.00 am on Friday March 18th he must state that it will cease three months later – June 18th at midnight and not at 10.00 am because Friday March 18th is taken as a whole day. This is the guidance that is generally given by the OSC inspectors. It is a common error by authorising officers to either insert the wrong times and dates .

Quite often acting as an approval authority, the magistrate therefore may find any one of the following:-

1. Technical fault with the time authorised as given by the dates;

2. They may ask the authorising officer to confirm whether or not the equipment being used is working correctly – if a statement to that effect has been omitted, - if equipment is not working properly then the exercise will never be proportionate because the product of the surveillance apart from the written surveillance log will be unusable.

3. They may want to alter the authorisation to specify when during the day the surveillance is to take place – and want to insert, ‘at an appropriate time during the mornings’ and then the authority may say they want authority to follow the subject from the suspected place of work later in the day in case he goes to another place of work. They may want it left open to enable them to follow him at any time of day – but then you would need to ask if that was proportionate by looking at the intelligence on the file.

4. Typing errors and other ‘slips’.

Guidance to Magistrates could be drafted say:

1. an authorisation can be compared to an insurance policy so if the officers act outside the terms of the authorisation they will not be covered ; and

2. that if they find themselves having to make extensive or substantial amendments to an authorisation they should consider whether a it must be approved at all, whereas technical amendments or lesser changes that do not affect the substance of the authorisation would normally be acceptable.

I have set out in Appendix 2 an amendment that you may consider suitable to cover this point – it is printed in bold.

Appendix 1

"111A Dishonest representations for obtaining benefit etc.

(1) If a person dishonestly-

(a) makes a false statement or representation;

(b) produces or furnishes, or causes or allows to be produced or furnished, any document or information which is false in a material particular;

(c) fails to notify a change of circumstances which regulations under this Act require him to notify; or

(d) causes or allows another person to fail to notify a change of circumstances which such regulations require the other person to notify,

with a view to obtaining any benefit or other payment or advantage under the social security legislation (whether for himself or for some other person), he shall be guilty of an offence.

(2)In this section "the social security legislation" means the Acts to which section 110 above applies and the Jobseekers Act 1995.

(3)A person guilty of an offence under this section shall be liable-

(a)on summary conviction, to imprisonment for a term not exceeding six months, or to a fine not exceeding the statutory maximum, or to both; or

(b)on conviction on indictment, to imprisonment for a term not exceeding seven years, or to a fine, or to both.

 Appendix 2

32B Procedure for judicial approval

(1) The public authority with which the relevant person holds an office,
rank or position may apply to the relevant judicial authority for an
order under section 32A approving the grant of an authorisation.

(2) The applicant is not required to give notice of the application to-

(a) any person to whom the authorisation relates, or

(b) such a person’s legal representatives.

(3) Where, on an application under section 32A, the relevant judicial
authority refuses to approve the grant of the authorisation concerned,
the relevant judicial authority may make an order quashing the

(4) Where on an application under section 32A, the relevant judicial authority

approves the grant of the authorisation , it may make an order granting the authorisation

subject to any amendments, conditions or provisions provided that it considers

the amendments to be necessary and proportionate and that it has allowed the

local authority to make submissions upon those amendments conditions or provisions

prior to the order being made.

(4) In this section "relevant judicial authority" and "relevant person" have
the same meaning as in section 32A."

May 2011