Agentless Backup is Not a Myth

A former police officer filmed mowing his lawn while on a disability allowance cannot claim that the filming broke the Regulation of Investigatory Powers Act (RIPA), according to the Investigatory Powers Tribunal.

The former policeman wanted the Tribunal to rule against the police force under RIPA, but the Tribunal has found that it has no jurisdiction to do so because the filming of him did not constitute the kind of surveillance that RIPA governs.

He was also awarded an enhanced pension due to the injuries on the basis that his disability was estimated at 53 per cent. He said the injuries would affect his ability to earn income as a driver.

In August 2002 the police instructed a firm of private detectives to observe the former sergeant to see if he was doing anything that was inconsistent with his claimed injuries. Nine minutes of video footage showed the man mowing the lawn and in his car.

RIPA governs the surveillance of people by public bodies to ensure it is lawful and that relevant warrants and permissions are obtained.

"Cases of unauthorised covert surveillance by a public authority of its employees would appear at first sight to be the kind of case that would fall within the jurisdiction of the Tribunal," said the Tribunal's ruling (PDF). "The main purpose of RIPA is to ensure that the relevant investigatory powers of public authorities, such as interception of communications and various forms of covert surveillance, are used lawfully and compatibly with [Human Rights] Convention rights."

The Tribunal is where individuals who think their rights have been infringed can complain about the actions of public bodies. The Tribunal though, only has jurisdiction if the surveillance dealt with is "directed surveillance" within the meaning of sections 26 and 48 (1) and (2) of RIPA.

Section 26 of the Act says: "Surveillance is directed for the purposes of this Part if it is covert but not intrusive and is undertaken (a) for the purposes of a specific investigation or a specific operation; (b) in such manner as is likely to result in the obtaining of private information about a person (whether or not specifically identified for the purposes of the investigation or operation); and (c) otherwise than by way of immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under this Part to be sought for the carrying out of the surveillance."

Section 48 says: "'Surveillance' in Part II includes (a) monitoring, observing or listening to persons, their movements, their conversations or their other activities or communications; (b) recording anything monitored, observed or listened to in the course of the surveillance; and (c) surveillance by or with the assistance of a surveillance device."

The ex-sergeant argued that the Tribunal did have jurisdiction because there was a campaign of directed surveillance against him. The police force argued there was no directed surveillance within the meaning of the Act because it was not a specific police operation of the kind the Act was designed to regulate.

The Tribunal pointed out that not all surveillance of the public by the police is governed by RIPA or breaches the Human Rights Convention.

It found that RIPA could not govern the surveillance because it did not cover all public authorities, and there was no sense in the police's pursuit of its economic interests being conducted on a different legal footing than, for example, the Treasury, which does not have the same surveillance rights under RIPA.

"The interpretation to be preferred is one which limits 'directed surveillance' under RIPA to the discharge of the public authority's particular public or 'core functions' specific to it, rather than the carrying out of 'ordinary functions' common to all public authorities, such as employment (or its nearest equivalent in the case of the police) and entering into contracts to receive or supply other services," said the ruling.

"This is not a case of directed surveillance within RIPA," concluded the Tribunal. "It therefore falls outside the jurisdiction of the Tribunal."

Copyright © 2007, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

What you need to know about cloud backup