Sir Christopher Rose, former Chief Surveillance Commissioner, has published his last report. Those who have read his annual reports may think a fair epitaph of his tenure might be, to quote `Shakespeare, “no legacy is so rich as honesty”. Others could fairly observe that his reports have become increasingly more acerbic. This last report, attempting to find some neutrality, certainly holds no punches.

The oversight of undercover officers, or “relevant sources”, has “had a considerable impact” in terms of volume of work. This may be counter-balanced by the stark reduction in directed surveillance authorisations from the Department of Work and Pensions. The Commissioner hypothesises reasons for this – greater use of overt investigations, collaborative working etc. What Sir Christopher does not consider is whether it might have something to do with an interpretation of s 110(2) of the Social Security Administration Act 1992, which may provide a legislative basis for an inspector to conduct some form of covert surveillance in connection with inquiries into benefit fraud. The Department could be relying on the Code of Practice on Covert Surveillance and Property Interference, at paragraph 1.15:

“Similarly, an authorisation under the 2000 Act is not required if a public authority has another clear legal basis for conducting covert surveillance likely to result in the obtaining of private information about a person. For example the Police and Criminal Evidence Act 1984 provides a legal basis for the police covertly to record images of a suspect for the purposes of identification and obtaining certain evidence”.

There has been no ruling on the applicability of s 110(2) but its scope may have given the Department of Work and Pensions some confidence, though it may be misplaced.

It is now clear that in respect of undercover officers there will be some limited reporting. The number of authorisations notified, cancelled and applications for prior approval will be reported. In this reporting year there were 1095 notifications, 770 cancellations and 46 submitted for prior approval. The OSC emphasise these figures need careful interpretation: a single covert operation may deploy more than one undercover officer, for example.

Overall the use of covert policing resources overseen by the OSC is down and in the case of property interference and directed surveillance significantly down (by 598 and 1331 respectively). The use of CHIS by law enforcement is down, although there is a slight increase of use by non-law enforcement public authorities.

Irregularities were up slightly – there was nothing unusual about their nature – pre-emptive surveillance activity before the authorisation is in place, leaving listening devices on after cancellation and failing to authorise use and conduct. Sir Christopher identified no evidence that the irregularities were intentional or motivated by bad faith. Importantly, the Chief Commissioner recorded that “failure to obtain an authorisation under the Acts for which I have oversight is not unlawful”. This is by virtue of the operation of s 80 RIPA, dealt with here.

Unusually this year’s report identifies instances of misconduct involving non-compliance with RIPA. These were: (i) use of a commercial surveillance device; (ii) the deliberate extension of the parameters of an existing authority which resulted in the acquisition of material subject to legal professional privilege; and (iii) the fabrication of reviews of use and conduct authorities. The consequences have been catastrophic for the officers concerned. In Covert Policing Law & Practice the propriety of disciplining officers for “breaching” RIPA is questioned. There is nothing unlawful in undertaking surveillance activities without an authorisation. Much will turn on the nature of the charges but caution should be exercised.

Inspections in respect of relevant sources will not result in the “complete eradication of rogue, unregulated activity by an undercover officer [and] compliance errors are inevitable”. However Sir Christopher is of the view that the chances of this are significantly reduced. In respect of authorisations during the reporting period, two issues arose. First, the completion of risk assessments could be improved upon – many are formulaic and contain little of relevance about the risks to the officer based on the operational scenario. Second, there is no effective de-brief on cancellation. This is constant theme of the OSC’s reports albeit in respect of the range of Part II activity. Meaningful appraisal of a deployment is essential and it will be a core aspect of future annual inspections.

Sir Christopher has had little positive to say about the Protection of Freedoms Act 2012 in previous reports. In this, his final report, his conclusion is that “there is little evidence that” the introduction of judicial approval for local authorities carrying out directed surveillance “was a move for the good”. This is interesting, not least because the Investigatory Powers Bill essentially “rolls out” a scheme of prior judicial authorisation for a range of covert surveillance activities. He also laments the lack of training for magistrates.

A series of issues are identified where public authorities need to improve. These include:

– poor analysis of intelligence cases

– the use of formulaic language in relation to, in particular, the assessment of risk of collateral intrusion

– lack of effective assessment of proportionality

– cutting and pasting

– ineffective de-briefing on cancellation, including handling of product and recovery of technical equipment

– over reliance by AO’s on pre-prepared entries on the application form and a failure to consider properly necessity and proportionality

– the failure to authorise a CHIS promptly

– poor risk assessments,

– effective discharge of the duties and compliance with the requirements of s 29

– a lack of training

Curiously, Sir Christopher ends the narrative of his report by referring to public reassurance. He asserts “the public can be reassured that [Part II] powers are almost always used only when necessary and proportionate”. The strength of this statement is undermined in two ways. First, his suggestion that the media is misreporting improper surveillance activities, “we also continue to see media articles about the use of surveillance and other covert activities that could lead the public to assume that “Big Brother is alive and well”. This is a curious assessment of the present climate where the role of the press has been central to exposing systemic impropriety, indeed illegality on the part of the state. Second, the efficacy of the oversight scheme depends largely on what Commissioner’s are told. This weakness has been exposed in Chatwani, discussed here. It will inevitably lead to ever increasing calls for the introduction of judicial authorisation.

© Simon McKay (2016). Please ask for my permission before using or copying the material contained in this blog. If you do, attribute it to me, with a link to the original content. This is opinion, not legal advice.