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use of covert powers during that three-year period. We have identified several causes
for this decline including, but not limited to, benefit fraud now being investigated
centrally by the Department for Work and Pensions (DWP), and councils favouring overt
investigations and/or working with local police forces to investigate criminality. In addition
to this, we believe that resource limitations are impacting the use of covert powers and
several councils have suggested that the introduction of the Protection of Freedoms Act
2012 has been a contributing factor. We have heard that the requirement to obtain the
approval of a magistrate can be seen as a hurdle, rather than an appropriate safeguard.
We are concerned that councils have found these changes in culture and legislation to be
prohibitive and the IPC has been keen to encourage the continued use of covert powers
which have been placed on statute to enable public authorities to undertake surveillance
to fulfil their civic responsibilities for the local community in this context, it is worth noting
that our findings in Scotland, where sheriff approval is only necessary for communications
data applications (see below), show more regular use of RIPA powers by all five councils we
inspected in 2018.
13.5
We examined the RIPA records in place at each of the authorities we inspected. The most
common recommendations were that Authorising Officers (AOs) should clearly articulate
their considerations in relation to necessity, proportionality and collateral intrusion and
that any CHIS application should be accompanied by an appropriate risk assessment. A risk
assessment should allow the AO a clear route to assess the risk in relation to deploying
that particular individual as a CHIS. This was not always possible from the casework
we reviewed. We also often recommended that councils should remove any remaining
references in their policy documents to use of the urgency provisions where these were no
longer available; this provision was removed by The Protection of Freedoms Act 2012. In
general, however, we were satisfied that records were well kept and that the necessity of
conducting the proposed action was clear.
13.6
We identified a handful of examples where records were inadequate but do not meet the
threshold for an error.33 By way of example, these included:
• In one case, the identity of an authorised CHIS had been changed during a review
(because the activity had been undertaken at different times by two members of the
council’s relevant department). A CHIS authorisation relates to a specific individual source
who may only be changed by a process of cancellation and fresh authorisation; and
• In a second example, an authorisation was granted for the investigation of offending
which failed to meet the penal threshold for directed surveillance. This meant that the
activity did not carry the protection afforded by RIPA. This highlighted a requirement
to identify clearly the offence being investigated and its maximum penalties in
each application.
13.7
We concluded that the standard of CD applications being produced by local authorities
was good, despite Special Points of Contact (SPoCs) returning 91% of all applications on at
least one occasion for further development or additional information. We are content that
this process demonstrates a conscientious approach and reflects the infrequent use of CD
applications by local authorities.
13.8
We made no recommendations in relation to the use of CD by local authorities in 2018.
33 Note that Section 80 of RIPA sets out that authorities are not required to obtain authorisations under RIPA to make these
activities lawful.