In his one of his greatest novels, J M Coetzee wrote, “the masters of information have forgotten about poetry, where words may have a meaning quite different from what the lexicon says, where the metaphoric spark is always one jump ahead of the decoding function, where another, unforeseen reading is always possible”.

It is not often a Nobel laureate can be cited in the context of a discussion about the otherwise dry subject of surveillance but it is apposite. The first edition of Covert Policing Law & Practice set out definitions of surveillance from a series of respected authorities but suggested that the activities of public authorities could “at least be constrained by the statutory definitions of surveillance that have been conceived for the first time in the United Kingdom by the Regulation of Investigatory Powers 2000 (RIPA 2000 or the 2000 Act)”. By the second edition, the words “although none is exhaustive” had to be added. This was as a result of an unlikely case emanating, not from the activities of the intelligence agencies or law enforcement, but South Oxfordshire District Council – more surprisingly yet – the target of the alleged surveillance was of an empty house. This case was one of two drivers behind this week’s blog; the other, the controversial assertions by the present government that mass surveillance or, as it is proposed it is known in the Investigatory Powers Bill, access to “bulk data”, is not in fact surveillance on the basis that, although it may be acquired and retained, it would only be examined in the event of an event that it made it necessary to do so. Surveillance is not defined in the Bill: RIPA is where we find a definition, such as it is.

RIPA creates an authorisation regime for two types of covert surveillance—directed and intrusive (this blog is only examining “surveillance”, not “covert” or specifically directed or intrusive surveillance). Section 48(2) provides that surveillance includes (so is not limited to) monitoring, observing or listening to persons, their movements, their conversations or their other activities or communications. It includes the recording of such activity and the use of a surveillance device (defined as ‘any apparatus designed or adapted for use in surveillance’) either wholly or in part to carry out any of the surveillance activity.

In Vaughan v South Oxfordshire District Council IPT/12/28/C, the local authority investigated the validity of a claim by Mr Vaughan for council tax relief. The key findings of fact were that (i) the purpose of the property inspections was to observe the state of the property to form a view whether the property remained uninhabitable and unoccupied, or whether it was inhabited by Mr. Vaughan as his sole or main residence; (ii) all the actions of the inspector at the property were directed to the proper purpose of gaining information about the state of the property and whether it was or was not occupied; (iii) the manner in which the inspections were carried out did not involve the monitoring or observing of Mr. Vaughan or any other persons at the property; (iv) the inspections were carried out openly, in daylight, and without any attempt to conceal the activity of the inspector from any persons who might be on the premises, or any neighbours or passers by.

The IPT held at paragraphs 16-19:

“The definition contained in s 48(2) is inclusive, not exhaustive, but it is clear from the context of the act that surveillance must be directed at persons. It is only if persons are the subject of surveillance that it is necessary to control the exercise of surveillance powers, and only if persons are affected by surveillance that any issue of interference with rights of privacy arises…s 26(9) refers to persons who are the subject of surveillance. It should be noted that s 48(2) provides that the monitoring or observation is of activities of persons, that is their movements, conversations, communications or other activities. So conduct which consisted solely of the observation or inspection of the property of a person, for example the inspection of an abandoned vehicle, would not in itself constitute surveillance.

“…Although s48(2) states that surveillance “includes” the monitoring and recording of the activities of persons, it is very difficult to envisage that there could be any surveillance which does not include some of such defined conduct. The way in which s48(2) is drafted means that conduct which has as its purpose such monitoring or observation would be surveillance within the meaning of the act, even if no actual monitoring of any persons took place. For example the observation of a deserted property, for the purpose of monitoring the activities of any persons who visited, would be surveillance. [Section] 48(2) might also encompass incidental acts, in addition to recording which is specifically covered at subsection 2(b), if such acts were done in furtherance of the purpose of observing or monitoring the activities of persons.

“…Thus in this context the word surveillance means acts of monitoring or observing the activities of persons. To ascertain whether there has been surveillance it is relevant to consider the purpose of the monitoring or observation, and the manner in which it is carried out.”

The absence of a definition was further emphasised in Re: a complaint of surveillance IPT/A1/2013, the IPT held that “the core activity of ‘surveillance’ itself is not defined in s.26, nor is it defined in s.48…s 48(2) refers to “surveillance”, but does not define it.”

The Tribunal reached four conclusions on s 48:

“First, the subsection refers to “surveillance” in (b) and (c), as well as in the opening words, in a manner that assumes that it has an accepted meaning. It was not considered necessary either to define or to describe it as such. Surveillance is essentially an intelligence gathering activity. It involves the use of various means. The person who is subject to surveillance is intended to remain unaware of those means and does not engage with the person secretly gathering the intelligence.

“…Secondly, the purpose and effect of the deeming technique in the drafting of s 48(2) is to provide that in Part II surveillance includes methods of intelligence gathering activities that might not be covered by surveillance in ordinary English usage. It may operate to amplify the ordinary meaning.

“…Thirdly, the common features of (a) (b) and (c) are that (i) none of them refers to the purpose of the activities described and (ii) all the activities described are different ways in which, for the purposes of Part II, intelligence about a person may be gathered without that person ever being aware of the means used: by monitoring, observing or listening to that person, or by recording those things in the course of surveillance, or by using a surveillance device. In brief, s 48(2) identifies particular aspects of the manner in which intelligence gathering may take place, without expressly defining surveillance itself, or providing when or where it takes place, or who is conducting it.

“…Fourthly, by s 48(2) (b) “recording anything monitored, observed or listened to” is surveillance, if such recording is of monitoring etc ‘in the course of surveillance.’ Thus, if the recording is not ‘in the course of surveillance’, it is not itself rendered surveillance by the subsection.”

Surveillance also extends to the interception of communications in the course of their transmission subject to the strict requirement that either the sender or recipient consents to the interception: RIPA, s 48(4)(a) and there is no warrant issued in connection with the interception. The circumstances when surveillance can amount to an interception of communications are rare (in Henderson and Marnoch v Her Majesty’s Advocate [2005] SLT 429 the Scottish Appeal Court appears to have fallen into error by considering a recording device attached to a telephone was an interception but I respectfully disagree)

Surveillance also excludes any conduct of a covert human intelligence source whether he or she is wearing a surveillance device or not or information disclosed in the presence of a source and the use of a source for obtaining or recording information: RIPA, s 48(3).

Nowhere in the definition is there a determinative requirement to consider, that which is obtained in fact. Indeed, it many cases it is quite impossible to do so. There is nothing in the recent Strasbourg jurisprudence on the acquisition of bulk data to suggest viewing the material was a pre-requisite to it amounting to surveillance: see Zakharov v Russia (Application no 47143/06, 4 December 2015) and Haasz and Szabo v Hungary (Application nos. 11327/14 and 11613/14, 13 January 2016). Bentham, not Coetzee was right perhaps, when he said, “all poetry is misrepresentation”.

The principles that can be identified from the decisions referred to are:

– surveillance includes the recording of activity, including a person’s movements, their conversations or their other activities or communications

– surveillance in RIPA terms is the surveillance of persons, not property

– it is not limited to technological means

– it is intended by those carrying out the surveillance that the subject is unaware the surveillance may be taking place.

– recording the subject, even if done covertly, is not of determinative importance: it is only relevant if it takes place during activity that amounts to surveillance in fact

– listening to or viewing the product of surveillance is not the test of whether surveillance has in fact taken place

© 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.