Covert Surveillance and Human Rights Act and RIPA

[romark]

I wanted to post this in the surveillance forum but there didn't seem to be an appropriate heading.

I have searched previous posts on setting up CCTV at home and the rules regarding instrusion onto neighbours or public property but have just done two jobs that I am not sure about.

They are both for an insurance company, that rquires compliance with the HRA, and both involve the subject claiming not being able to do any gardening at home.

Video evidence from the first case was obtained from a neighbours bedroom window, (they really did not like her!!!) overloking the subjects garden.

The second was from being dug in on a farmers field ( I did not have permission to be there) overlooking a womans unfenced garden.

Both got excellent results but have I infringed their human right?

Also both of the insured are local councils so does RIPA become involved?

Thanks

 

[Basha72]

I'll have a go for you ?

If you were working for the council/ acting on their behalf, I would say you should have had a RIPA form signed off by a signifcant member of the council who requested it. Also permission of the land owner who's land you were on, would all be in best practice for obtaining this footage. I'm guessing that have the council got a CCTV code of practice it may include in it what they need to do in order to obtain footage.

Normal domestic properties don't fall into the DPA, but working for a Council will.

Hope this is of help or someone else gives more relevant or up to date info

Basha

 

[ilk]

I wanted to post this in the surveillance forum but there didn't seem to be an appropriate heading.

I have searched previous posts on setting up CCTV at home and the rules regarding instrusion onto neighbours or public property but have just done two jobs that I am not sure about.

They are both for an insurance company, that rquires compliance with the HRA, and both involve the subject claiming not being able to do any gardening at home.

Video evidence from the first case was obtained from a neighbours bedroom window, (they really did not like her!!!) overloking the subjects garden.


The second was from being dug in on a farmers field ( I did not have permission to be there) overlooking a womans unfenced garden.

Both got excellent results but have I infringed their human right?

Also both of the insured are local councils so does RIPA become involved?

Thanks

It looks like there would be a good case of the subject's rights are being breached as defined by the HRA.

To quote....

Therefore, to comply with Article 8 (1), which relates to the privacy of an individual, and Article 8 (2) which gives the exception, a risk/threat assessment must be carried out taking five issues into consideration. Remember any infringement by a public authority of another’s rights must be justified. Always consider the following principles enshrined in the mnemonic PLANS:

Proportionality
P
Legality
L
Accountability
A
Necessity/Compulsion
N
Subsidiarity
S


So it could be argued that the investigation was not proportional nor was the evidence gained legally.

If RIPA authorisation was not gained this would be another problem.

Proportionality also comes into play with RIPA.

to quote

a) that the authorisation is necessary in the circumstances of the particular case on the grounds that it is:

· in the interests of national security;

· for the purpose of preventing or detecting serious crime; or

· in the interests of the economic well-being of the UK;

and

b) the authorising officer must also believe that the surveillance is proportionate to what it seeks to achieve.

This is why the use of this Act is nowdays always in the press due to some Council's inappropriate use of RIPA in cases of flytipping, littering, dog fouling etc.



In future I would suggest that to protect yourself ensure that a RIPA is in place (ask to see it!) and ensure the Local Authority sanctions the planned intrusive surveillance.

Sorry, but very often Local Authorities do not understand the law or will try to ignore it when it suits.

Ilkie

 

[romark]

My client is the insurance company, who will be the ones dishing out any compensation, so I dont think there is need for a RIPA from the council.
I have done work for Police HR departments on long term sickness without one in the past.

As for HRA, will just have to wait and see if it ever goes to court. I think that the strengrh of the evidence will outweigh any objections.

Thanks

 

[isstraining]

Romark,

Forget about RIPA, forget it totally- you are not acting on behalf of a Public Body. As you are in the 'profession' I am guessing that you are registered with the DPA. If you are not, you are acting illegally.

However, I would take a close look at the Data Protection Act, especially Section 36, here's a few pointers, don't know if it is of any use

In simple terms, here's an extract from a forthcoming book...

Data Protection Act 1998

The Data Protection Act 1998 came into force on 1st March 2000. It sets rules for processing personal information and applies to some written paper records as well as those held on computers. The Act applies to ‘personal data’ that is about identifiable living individuals.

The Data Subject’s Rights

The reason and concept of the Data Protection Act was to partially provide some sort of fairness and security for the ‘Data Subjects’ or ‘us’, the general public. As so much information is being stored and processed by many organisations, it was deemed that this information should be kept accurate, truthful and fair. The Act also makes provision for the ‘Data Subject’ so that he or she is able to find out what information is held about themselves on computer and/or on paper files. This is known as the ‘right of subject access’.

The Act also allows individuals to apply to the Court to order a Data Controller to rectify, block, erase or destroy personal details if they are inaccurate or contain expressions of opinion which are based on inaccurate data.


Access to information and data held about you

Any person can apply for a copy of the information held about them. Requests must be made to the person or organisation (Data Controller) who you think processes the information to which you want access. You must apply in writing and must be accompanied by the appropriate fee of £10.00 and proof of your identification. The Data Controller should respond within 40 days of receiving your request.

Individuals are entitled to be told if any personal data is held about them and if so:

• To be given a description of the data

• To be told for what purposes the data is used

• To be told the recipients to whom the data may have
been disclosed

You are also entitled:

• To be given a copy of the information with any unintelligible terms explained

• To be given any information available to the controller about the source of the data

Theoretically speaking, if a target of surveillance were to find out which investigation agency or person has them under surveillance, they would be legally entitled to view any information or data (surveillance logs, video tapes) that has been obtained about them. There are various exceptions to this rule which includes surveillance by a public body. So if you get compromised, ensure that the target does not identify you and keep your fingers crossed that he is unaware of the DPA!

Again, this subject can be a minefield, the Data Protection website is very clear and helpful. To register you have to notify that you are a Data Controller by submitting the relevant forms with a fee of £35.00 per year. Failure to do so is a criminal offence and can result in a fine and/or imprisonment.


Data Protection Act in Relation to Covert CCTV

The DPA takes into account the use of domestic CCTV systems for your own private security and does not expect every householder to register with them. However, the Act gives certain exemptions to the above eight enforceable principles for a CCTV camera mounted on private and domestic property.

Section 36 of the DPA states that:- Personal data processed by an individual only for the purposes of that individual's personal, family or household affairs (including recreational purposes) are exempt from the Data Protection Principles.

If a person enters the property covered by CCTV the owner does not need to put up notices stating that the person is entering a CCTV covered area. Nor is he required to provide a copy of the film he has taken to the Data Subject if they make a formal request.

However, if that CCTV camera picks up images outside the premises, such as a pedestrian walking past, or a camera overlooks his neighbours garden then the above eight principles have to be considered and a sign put up.

However, if your camera is covert, Part 1 of the DPA CCTV Code of Practice states:

In exceptional and limited cases, if it is assessed that the use of signs would not be appropriate, the user of the scheme must ensure that they have:

a)Identified specific criminal activity.

b)Identified the need to use surveillance to obtain evidence of that criminal activity.

c)Assessed whether the use of signs would prejudice success in obtaining such evidence.

d) Assessed how long the covert monitoring should take place to ensure that it is not carried out for longer than is necessary.

e) Documented (a) to (d) above.

Information so obtained must only be obtained for prevention or detection of criminal activity, or the apprehension and prosecution of offenders. It should not be retained and used for any other purpose. If the equipment used has a sound recording facility, this should not be used to record conversations between members of the public.

Therefore you are able to install covert CCTV so long as you comply with the above codes of practise and the enforceable principles of the DPA.

Cheers

Peter
ISS Training Ltd

 

[romark]

ISS
Thanks for all that. I understand the obligations under the DPA regarding storage and disclosure. I have only been asked once for everything held on a person but it was only the same as had been disclosed to his solicitors so no problems.

But reading the section above I still don't understand how it impacts on the day to day life of a surveillance operative. Maybe I have just been reading too much law lately!!

With regard to the two examples I have already dismissed RIPA as a problem even though the "real" client could be classed as the local council.

But should the evidence be used with regard to HRA and DPA? I had permission to be in the neighbours house (which didn't have any CCTV) but should I have been filming into her garden? I did not have permission to be in the farmers field but the garden was open to public view from a nearby footpath.

Any opinions would be gladly received.

(I am fully aware of the Ways and Means Act)

 

[ilk]

ISS
Thanks for all that. I understand the obligations under the DPA regarding storage and disclosure. I have only been asked once for everything held on a person but it was only the same as had been disclosed to his solicitors so no problems.

But reading the section above I still don't understand how it impacts on the day to day life of a surveillance operative. Maybe I have just been reading too much law lately!!

With regard to the two examples I have already dismissed RIPA as a problem even though the "real" client could be classed as the local council.

But should the evidence be used with regard to HRA and DPA? I had permission to be in the neighbours house (which didn't have any CCTV) but should I have been filming into her garden? I did not have permission to be in the farmers field but the garden was open to public view from a nearby footpath.

Any opinions would be gladly received.

(I am fully aware of the Ways and Means Act)

As you suggest that your 'real' client is the Council is why I indicated that a RIPA may be required.

Legality
HRA requires the evidence to be gathered legally and as you where in the farmers field without permissions again a question mark here.

Proportionality
The thorny one is would be proportionality and it could be argued that to use including secret long range spying (being in the neighbours house) and military type concealment tactics to gather illegal evidence (farmers field) to spy on a person pottering around in their private garden (you can see how this can be dressed up in court by the defence brief) may not be considered proportional by a jury.

It is unlikely that a RIPA would be signed off given current press about Councils use of anti terrorism spy powers to video the subject walking in their garden and you can see dressed up like this it could be a problem.

Just a different slant on it.

Ilkie

 

[isstraining]

Romark,

As we said that RIPA is not an issue, the claimant may kick off quoting the Human Rights Act Article 8 'Right to Privacy' as many others have done in the past. However, the same arcticle refers to 'interference by a Public Authority' of which you are not.

A Ike says, a judge has to decide what is fair, necessary and proportionate, which you know about.
A court case about two years ago (can’t remember the case) relating to a ‘personal injury’ surveillance, investigators had obtained video film of their target carrying out physical activities which contradicted his claims. The conclusion made by the district judge at the court hearing, was to the effect that (in view of the video evidence), the claimant (target) was exaggerating his claim for injuries – like they do!

The video film was taken from a public place but provided detail of activity filmed through his front door and windows. The claimant and his legal team used this as a basis to apply for an appeal against the district judge’s decision on the grounds that the video film was inadmissible as it infringed the claimants human rights under Article 8.1 (as it was a contravention to his right to privacy). The judge added that the evidence (video tape) was justified under Article 8.2 and added that, so long as the surveillance operative did not trespass onto private property to obtain the film of what can be seen with the naked eye, then that evidence was lawfully obtained. Thus the application for appeal was not granted.

Gavin Robertson is on this forum from time to time and is more of an expert, he may put a different angle on it.

If you had permssion from the neighbours to film from the window - no problem - must have been a good blag or did you offer them £50!

As for the farmers field, it would have to be the farmer who sued you for trespass but he would have to make the complaint and follow it through and unless he can prove 'damage' he isn't going to bother.

Cheers

Pete
ISS Training Ltd

 

[conwy]

Pete, as usual, is right, no RIPA needed and is right again about the issues regarding trespass and obtaining footage from public land to private land is usually OK.

I undertake covert surveillance tasks for a local authority on a regular basis and in those cases a RIPA is required which I ensure I have a copy before hard to ensure that it covers the activity and for my records.

Interesting case this year which I was not involved with but know the details.
Couple contacted the RSPCA about their neighbours who were beating their own dogs in their own back yard. RSPCA stated that they needed proof before investigating further.

The concerned couple bought a CCTV camera, installed it on the wall of their house and aimed it into the next door yard with a view of getting the evidence.

They duly obtained good evidential footage and presented it to the RSPCA, who in turn prosecuted the offenders. The CCTV footage was crucial in the offender's conviction for animal cruelty and was shown on local TV after the case.

 

[romark]

It seems that as long as the evidence is good and you dont trespass on the subjects property you are ok. Long may that continue.

Thanks for all the input.

ISS..As for the nieghbour, no I didn't blag it. That would have put them in an very dangerous position. They had already reported her for faking it and were more than happy to give us a call when she was in the garden. They hated her! Oh for more easy ones like that!!

 

[kensplace]

With regard to the two examples I have already dismissed RIPA as a problem even though the "real" client could be classed as the local council.

Surely if the council require targetted surveillance, the council cannot dispose of their obligations to act under RIPA by simply hiring someone else to hire someone else to do the surveillance?

If that is the case, it makes a mockery of the RIPA act, as they can simply hire someone to do all surveillance.

 

[ilk]

Surely if the council require targetted surveillance, the council cannot dispose of their obligations to act under RIPA by simply hiring someone else to hire someone else to do the surveillance?

If that is the case, it makes a mockery of the RIPA act, as they can simply hire someone to do all surveillance.

Agreed 100%

If a company working on behalf of the Council and a sub contractor working for the company conduct targeted surveillance that falls within the requirement for RIPA Authorisation then a RIPA is required.

Otherwise it is all smoke and mirrors that will be revealed when the Surveillance Commissioner comes visiting.

Those that conduct surveillance without Authoristaion when one is required are in breach of the Act.

Ilkie

 

[RIPA]

Ripa cctv

I wanted to post this in the surveillance forum but there didn't seem to be an appropriate heading.

I have searched previous posts on setting up CCTV at home and the rules regarding instrusion onto neighbours or public property but have just done two jobs that I am not sure about.

They are both for an insurance company, that rquires compliance with the HRA, and both involve the subject claiming not being able to do any gardening at home.

Video evidence from the first case was obtained from a neighbours bedroom window, (they really did not like her!!!) overloking the subjects garden.

The second was from being dug in on a farmers field ( I did not have permission to be there) overlooking a womans unfenced garden.

Both got excellent results but have I infringed their human right?

Also both of the insured are local councils so does RIPA become involved?

Thanks

##

Hi, if you were representing the insurance company then that falls outside RIPA but as you quite rightly state you have to consider the HRA, particularly in relation to necessity and proportionality. If you were represting and acting on behalf of a local authority then you must be acting with a properly authorised directed surveillance authority. Have a look at my website [url]www.paulabbottassociates.com[/URL] I offer training in this area but would also be pleased to offer you advice should you call the mobile number on the website. Kind regards, RIPA

 

[RIPA]

Hi, if you were representing the insurance company then that falls outside RIPA but as you quite rightly state you have to consider the HRA, particularly in relation to necessity and proportionality. If you were represting and acting on behalf of a local authority then you must be acting with a properly authorised directed surveillance authority. Have a look at my website [url]www.paulabbottassociates.com[/URL] I offer training in this area but would also be pleased to offer you advice should you call the mobile number on the website. Kind regards, RIPA

 

[ilk]

Hi, if you were representing the insurance company then that falls outside RIPA but as you quite rightly state you have to consider the HRA, particularly in relation to necessity and proportionality. If you were represting and acting on behalf of a local authority then you must be acting with a properly authorised directed surveillance authority. Have a look at my website [URL="http://www.paulabbottassociates.com"][url]www.paulabbottassociates.com[/URL][/URL] I offer training in this area but would also be pleased to offer you advice should you call the mobile number on the website. Kind regards, RIPA

Thanks for the response RIPA.

What, in your opinion is the situation if the insurance company is working on behalf of the Council?


Ilkie

 

[RIPA]

Thanks for the response RIPA.

What, in your opinion is the situation if the insurance company is working on behalf of the Council?


Ilkie

Hi Ilk, it is not my opinion it is the legislation. If the insurance company is working for or on behalf of the Local Authority (any Public Authority) then they must be acting, where appropriate, under a RIPA authority. I cant think of circumstances where an insurance company would be working FOR a Local Authority - it is more likely that they were monitoring the activities of an individual employed by the council who was making a suspected fraudulent claim. In which case it would fall outside RIPA. In the words of the meerkat - simples!
Kind regards, RIPA

 

[ilk]

Hi Ilk, it is not my opinion it is the legislation. If the insurance company is working for or on behalf of the Local Authority (any Public Authority) then they must be acting, where appropriate, under a RIPA authority. I cant think of circumstances where an insurance company would be working FOR a Local Authority - it is more likely that they were monitoring the activities of an individual employed by the council who was making a suspected fraudulent claim. In which case it would fall outside RIPA. In the words of the meerkat - simples!
Kind regards, RIPA

The OP suggested

"With regard to the two examples I have already dismissed RIPA as a problem even though the "real" client could be classed as the local council."

It is legal point I know (and we do not know the circumstances of this surveillance), but say if the insurance company has commissioned the project to investigate a claim against a Local Authority (for which the insurance company would be liable to pay), the principle client would be the Council and therefore RIPA would apply.

I'm I correct?

Ilkie

 

[romark]

Ilk.

Give RIPA(Paul Abbott) a call as he suggested. I spoke with him today and he appears to be very knowledgeable in this field.

If acting for an insurance company, even if they insure a local authority, then you do not require a RIPA.

Even if acting for a local authority or Police and the case is purely sickness and not criminal then again no RIPA is required. But it should be considered in case something criminal shows itself.

If I conduct surveillance for a local authority or Police without a RIPA and it is later found that a RIPA should have been issued then I commit no offence other than maybe under HRA.

So in answer to your question then "No".

 

[ilk]

Ilk.

Give RIPA(Paul Abbott) a call as he suggested. I spoke with him today and he appears to be very knowledgeable in this field.

If acting for an insurance company, even if they insure a local authority, then you do not require a RIPA.

Even if acting for a local authority or Police and the case is purely sickness and not criminal then again no RIPA is required. But it should be considered in case something criminal shows itself.

If I conduct surveillance for a local authority or Police without a RIPA and it is later found that a RIPA should have been issued then I commit no offence other than maybe under HRA.

So in answer to your question then "No".

Sorry to nit pick, but I am not sure I agree with you.

First there is no requirement for criminal behavior before RIPA comes into play. I believe that the action at least constitutes directed surveillance. ie

"Directed surveillance" is defined in subsection (2) as covert surveillance that is undertaken in relation to a specific investigation or a specific operation which is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation).

The reason why the surveillance is taking place is not an issue. The fact that directed surveillance is taking place is why RIPA would be required (if undertaken by a public authority)

Second, I think one might argue that if the insurance company's client is the Local Authority, it is acting on behalf of the same.

As the Local Authority cannot circumvent their responsibilities by sub- contracting the the surveillance action, RIPA comes into play.

Now this is a fine point that might be argued in court but I think it has some weight.

From the original post I think the subject was in their house and garden, which makes the surveillance intrusive where the rules for RIPA authorisation are more severe.

Ilkie

 

[isstraining]

Guys,

Don't forget this bit:

In the interests of national security

For the prevention and detection of crime or the prevention of disorder

In the interest of public safety

For the purpose of protecting public health

For the purpose of assessing or collecting an tax, duty, levy or other imposition, contribution or charge payable to a government department

If it doesn't fall into any of these categories, RIPA is not required.

Peter