Will local authority investigations come within the scope of the new Regulation of Investigatory Powers Act? John Pointing examines the relevant sections.

According to its promulgators, the Regulation of Investigatory Powers Act 2000 (RIPA) was needed due to the "revolution in communications technology" and to protect human rights.1 It followed in the wake of the Human Rights Act 1998 (HRA), coming into force on 2 October 2000. This resulted in the rights and freedoms set down in the European Convention on Human Rights (ECHR) becoming incorporated into UK law. Of particular importance is s.6 HRA, which makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. Article 8 of the ECHR stipulates the right to respect for private and family life and is relevant to statutory nuisance cases.

Article 8 of the ECHR does not provide an unqualified entitlement and other factors should be considered. Article 8(2) includes the protection of the rights and freedoms of others as a justification for interference in the right to respect for private and family life, so, for example, the rights of noise victims will be included. Article 8(2) also requires that any interference by a public authority must be in accordance with law and it was partly for this reason that RIPA was enacted.

APPLICATION TO STATUTORY NUISANCE
Part II RIPA is the relevant part with regard to local authority enforcement.2 Though primarily directed to such bodies as the police, security services and HM Customs and Excise, Part II also applies to local authorities.3 Draft codes of practice issued under s.71(3)(a) of the Act have not considered local authority investigations.

There may be a potential breach of article 8 where the local authority investigating a case of neighbourhood noise nuisance, for instance, monitors and obtains recordings of noise levels. Whether there is an actual breach will depend, first, on whether the activity itself amounts to surveillance. Section 48 of RIPA defines surveillance as including: "monitoring, observing or listening to persons, their movements, their conversations or their other activities or communications". It includes: "recording anything monitored, observed or listened to in the course of surveillance". Section 26 RIPA applies to:

• directed surveillance;
• intrusive surveillance; and
• to the conduct and use of covert human intelligence sources.

DIRECTED SURVEILLANCE
Directed surveillance is defined by the Act as covert but not intrusive, when undertaken as a specific investigation or operation and carried out in such a way as to make it likely that private information is obtained about a person.4 "Private information" includes any information relating to a person's private or family life.5 Surveillance includes monitoring, observing or listening to persons and any recordings made as a result of such activities.6

Noise nuisance involving residents or neighbours, would appear to come within this definition when an investigation has been carried out covertly. However, it is not clear-cut whether the evidence obtained from such an investigation comprises private information or not. For example, evidence which shows that music was played loudly or persistently enough to cause a nuisance to others could be interpreted simply as evidence of excessive noise. Does such evidence constitute information relating to family or private life? Arguably, not. However, if it does, and the position is not clear at the time of writing, then it comes within the Act.

AUTHORISATION
Directed surveillance must be authorised in each case by a designated person. A designated person must an assistant chief officer or an officer responsible for management of an investigation.7
Authorisation must be obtained for each investigation. If neighbourhood noise investigations do come within the scope of directed surveillance then the burden placed upon local authorities will be very great. This will apply, for example, where the council provides a night-time party patrol service and many complaints will need to be investigated during a shift, each requiring separate authorisation if directed surveillance is involved.

INTRUSIVE SURVEILLANCE
Intrusive surveillance is covert surveillance that is carried out on any residential premises, or in any private vehicle, which involves the presence of an individual on those premises, or in that vehicle, or is carried out by means of a surveillance device.8 Local authorities are not authorised by RIPA to carry out intrusive surveillance. If a court were to decide that the type of surveillance employed to obtain information was intrusive, the evidence would have been obtained without authorisation and in breach of s.6 HRA and should not be admissible.

DIRECTED OR INTRUSIVE SURVEILLANCE?
It is important that the distinction between directed surveillance - which can and must be authorised - and intrusive surveillance is understood. Covert surveillance undertaken by a person off the premises of the person causing the nuisance, would be directed not intrusive surveillance, unless it involved the use of a surveillance device.For the use of a surveillance device to be intrusive, it would either have be placed covertly in the premises of the person causing the nuisance, which would be improper as this would not be authorised by statute. Alternatively, to be intrusive, the device would have to be of a type that: "consistently provides information of the same quality and detail as might be expected to be obtained from a device actually present on the premises".9

DOES IT AMOUNT TO SURVEILLANCE?
It is conceivable that this second possibility might apply in a statutory nuisance case. But it must also be established that a noise monitoring device is a surveillance device for purposes of RIPA. Whether the measurement and recording of noise levels is capable of amounting to surveillance is problematic and doubt is not resolved by the definition provided in the Act.10 By contrast, a tape recorder which records the actual sounds made by the noise offender, including conversation, fits more closely with the intention of the Act and is included in s.48. In the author's view, the sections in RIPA on intrusive surveillance would have any relevance to a statutory nuisance investigation only in the limited circumstances that the monitoring instrument:

• was a surveillance device; that also
• consistently provided data of equivalent detail and quality to one used on the premises in question.

Were the use of a monitoring device to be deemed intrusive, the result would be that the evidence obtained from it was not authorised by RIPA and ought not to be admitted in court.

COVERT HUMAN INTELLIGENCE SOURCES
Where the neighbour of a person causing a statutory nuisance is asked by an investigating officer to collect evidence covertly about it, arguably he could be acting as a covert human intelligence source for the purposes of the Act.11 This would apply to the keeping of a noise diary, for example, where the victim cultivated a relationship with the noisy neighbour in order to obtain information about him. Similarly, in cases of neighbourhood noise nuisance where a paid witness is used by the local authority to collect evidence, the RIPA provisions arguably apply. Authorisation for the use of covert human intelligence sources is provided by s.29 RIPA and the process is similar to that applying in respect of directed surveillance.

LACK OF CLARITY
Without guidance from the Secretary of State it is unclear whether RIPA applies to routine local authority investigations of statutory nuisances or to investigations carried out under the Noise Act 1996. The lack of specificity in the Act may partly be the result of the speed with which it was enacted, in response to the European Court of Human Rights case of Khan (Sultan) v United Kingdom [2000] Crim LR 684.

The Act's primary purpose is to regulate services for whom surveillance operations are often central, such as the police and HM Customs and Excise. Including local authorities may have been an afterthought and so the implications were not properly thought through. This suggests doubt whether Parliament intended to extend these regulatory provisions to cover routine local authority investigations. On the other hand, there is a plausible argument that any lack of such regulation would mean that RIPA was not fully compatible with the Convention. This would require amending the legislation to ensure that routine local authority investigations which comprise a surveillance element are included.
In practical terms, the basic areas of uncertainty are over whether:

• the evidence produced by a covert investigation comprises private or family information;
• noise monitoring devices are capable of amounting to surveillance devices;
• the keeping of noise diaries by victims makes them covert human intelligence sources; and
• the use of paid witnesses makes them covert human intelligence sources.

If local authority investigations do come within the scope of RIPA, a system for authorisation needs to be set up. An officer of sufficient rank and experience will need to make authorisation decisions; this should be a different individual from the one running the investigation for which authorisation is sought. A procedure for recording the reasons for authorisation decisions being made will also be needed. This is to ensure that decisions are made consistently, transparently and proportionately - in the spirit of human rights legislation.

John Pointing is a barrister practising in environmental health law at Field Court Chambers, 3 Field Court, Gray's Inn. He is also a trainer with Environmental Training Consultants. E-mail: john.pointing@fieldcourtchambers.com

REFERENCES
1 Home Secretary's foreword to consultation paper, "Interception of Communications in the United Kingdom", (1999) Cm. 4368.
2 In effect since 25 September 2000: SI 2000/2543.
3 RIPA 2000, schd. 1.
4 RIPA 2000, s.26(2). Section 26(9) states that surveillance will be covert: "if, and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place".
5 RIPA 2000, s.26(10).
6 RIPA 2000, s.48(2).
7 Regulation of Investigatory Powers (Prescription of Offices, Ranks and Positions) Order, SI 2000/2417.
8 RIPA 2000, s.26(3).
9 RIPA 2000, s.26(4).
10 RIPA 2000, s.48(2).
11 RIPA 2000, s.26(1)(c).