An introduction to the Regulation of Investigatory Powers Act 2000
Peter Wake offers some guidance on the key tenets of the Act and looks at the meaning of ‘surveillance’…
Peter Wake offers some guidance on the key tenets of the Regulation of Investigatory Powers Act 2000 and looks at the meaning of 'surveillance'.
The Regulation of Investigatory Powers Act 2000 ("RIPA"), as amended by the Protection of Freedoms Act 2012 ("PFA"), is a widely misunderstood statute. The misunderstanding extends across the public, the media and politicians, as well as legal commentators and practitioners. Indeed, the 2012 PFA reforms, requiring authorisation from a magistrate, were arguably largely a response to media exaggeration about local authorities purportedly misusing its powers under RIPA to 'spy' on the public.
In very simple terms RIPA is an Act that regulates the power of public bodies to carry out surveillance and investigation. In the insurance claims context its application is often discussed when a public body is sued for personal injury damages and it (and/or its insurer or claims handler) wants to carry out surveillance of the claimant for the purposes of investigating the veracity of the claimant and the extent of his or her injuries/symptoms.
Surveillance is regulated by Part II of RIPA and the scope of Part II is dealt with in section 26 which confirms that RIPA has no application at all unless the surveillance is "directed surveillance" or "intrusive surveillance" (intrusive surveillance is a subset of directed surveillance).
If section 26 is interpreted literally, it appears that surveillance being carried out by a public body for the purposes of investigating a personal injury claim against it would be "directed surveillance". However, it is clear from the decision of the Investigative Powers Tribunal in C v The Police  (IPT/03//32/H) that this is not the correct interpretation of section 26. This case concerned surveillance carried out by inquiry agents instructed by a police force against a former employee who was claiming an injury pension. The Tribunal held that the surveillance was not being carried out in the course of a "specific investigation" because it was necessary to distinguish between the "core functions" of a particular public authority and "ordinary functions" which it shared with all public authorities. The defence of a personal injury claim fell purely within the private law sphere of its activities; it was an ordinary function rather than a core function.
The current Code of Practice on Covert Surveillance and Property Interference (Home Office, 2010) adopts the decision in C v The Police. It does, however, draw attention to the possibility of a public body simultaneously pursuing both types of function, such as a police force that believes that a police officer is making a fraudulent claim and carries out surveillance for dual purposes: to further a criminal investigation and to gather evidence to meet the claim. In such a case, an authorisation under Part II may be required. So far as most public bodies are concerned, however, it is not their function to investigate such offences. Accordingly, it seems clear from C v The Police and the Code of Practice that Part II of RIPA has no application to surveillance carried out by a public body for the purposes of a personal injury claim. Nothing in the PFA (or in the guidance to local authorities on the PFA changes) alters this.
It follows that surveillance carried out by the insurers of public bodies, for the same purpose does not fall within RIPA. This means that public bodies or their insurers or claims handlers can proceed with reasonable surveillance without having to proceed through the process involving application to the Magistrates Court set out in PFA. However, it remains crucially important that any surveillance is carried out in a lawful manner.
Covert surveillance and when to use it
Surveillance is defined within RIPA as including monitoring, observing or listening to persons, their movements, conversations or other activities and communications. It may be conducted with or without the assistance of a surveillance device and includes the recording of any information obtained (Section 48(2) RIPA 2000).
Such surveillance is covert if, and only if, it is carried out in a manner calculated to ensure that any persons who are subject to the surveillance are unaware that it is or may be taking place (Section 26(9)(a) RIPA 2000). Intrusive surveillance is covert surveillance that is carried out in relation to anything taking place on residential premises or in any private vehicle (and that involves the presence of an individual on the premises or in the vehicle or is carried out by a means of a surveillance device).
Directed surveillance is covert surveillance that is not intrusive but is carried out in relation to a specific investigation or operation in such a manner as is likely to result in the obtaining of private information about any person and is not an immediate response to events or circumstances where it would not be practical to seek authorisation. As discussed previously some of these types of surveillance require RIPA authorisation and some do not.
There are a number of uses for covert surveillance, some of which are intrinsic to the day to day activities of public bodies and some which are less frequent.
In an insurance context the most frequent use for convert surveillance is during the investigation of a personal injury claim. You will note from previous commentary this type of surveillance does not come under the RIPA umbrella and does not therefore require authorisation (unless you are a Police Authority). In light of the recent Jackson reforms (2013) and the introduction of Qualified One Way Cost Shifting (QOCS) surveillance evidence, on appropriate cases, is likely to become even more important. The new position is that a Defendant will now be unable to recover its costs, even if successful at Trial, unless one of the defined exceptions applies, such an exception is where a claim is found to be fundamentally dishonest. Furthermore, although QOCS will continue to apply to those cases which are discontinued, good surveillance evidence may encourage an early discontinuance thereby limiting the public body's exposure to both parties costs.
It should be noted that outside of an insurance context surveillance has its uses but the public body will be subject to the tighter controls under RIPA as considered previously. Investigating a suspected fraudulent benefits claimant, a shop keeper who is suspected of selling alcohol to under age children or a company suspected of fly tipping are all justified uses for surveillance, particularly where those suspected of engaging in such activity are serial offenders. All these examples fall outside of this guidance and the reader should ensure the correct procedure is adopted in relation to RIPA.
Is the surveillance necessary and proportionate?
A public body should give substantial consideration to whether surveillance is necessary prior to any instruction. When investigating a personal injury claim, whilst there may be a suspicion that a claimant has exaggerated their claim, in many cases the use of any surveillance obtained may have a minimal effect on the outcome of the claim. For example, if a claimant alleges ongoing symptoms following a soft tissue injury to the neck 1 year post accident, and surveillance is carried out which shows they are seen to be fine, how much has the claimant's claim actually been reduced? Would damages be reduced at all if the claimant alleges "it was one of my better days" as is a common response to such footage? If it is accepted the public body are liable to the claimant, all that may be achieved is a small reduction in damages. It may be necessary to instruct a surveillance operative to conduct surveillance over a couple of days, to obtain anything of use, which can be costly. The costs of such surveillance may therefore outstrip any reduction.
Such surveillance would however be invaluable to a large multi track claim where the claimant is alleging some form of permanent mental or physical incapacity. The likely value of the claim will therefore play a part in determining whether the use of surveillance is proportionate.
When wanting to carry out covert surveillance for those investigations which are caught by RIPA and require authorisation, the Local Authority must be able to demonstrate to the Magistrate that correct procedures have been followed, the use of surveillance is proportionate to the crime being investigated and that the Serious Crime Test, referred to below, is satisfied. The Magistrate must also consider any collateral intrusion, namely the level of intrusion to any people not involved in the investigation and whether steps can be taken to mitigate against it. Once internal authorisation has been obtained it will not come into effect unless and until it is approved by a Magistrate.
If you are in any doubt about what you are considering, seek expert assistance.