Low Level Criminal Activity Detected by Anti-Terror Law

Whether you are from the North, Southeast or another part of the country, local councils serve an important role in the operation of many key services for people and businesses. From social care to housing and planning, the role of the councils is to work with everyone in the community to fulfil local priorities and deliver services on a daily basis. However, recent freedom of information requests have revealed that some councils might have acted outside of the scope of their powers by using an anti-terror law, the Regulation of Investigatory Powers Act (RIPA) 2000, to detect low level crimes. From January 2018 to March 2021, it is estimated that at least 70 councils in England and Wales used the act to gather evidence via cameras, informants, undercover officers and street surveillance. The low level crimes in which they have detected include fly-tipping, benefit fraud and misuse of the blue badge, raising the question of whether it is legal and moral for local councils to snoop on residents.

The RIPA 2000 was enacted in age where the internet was growing in importance and there was a strong use of encryption in electronic communications. The turn of the century had also been a time where the labour government began to implement various pieces of legislation to tackle the growth in terrorism.

The main purpose of RIPA was to give public bodies the ability to carry out surveillance activities to prevent crime when this is in the interest of national security. The powers deriving from the act only permit the investigation of crimes that carry a minimum prison term of 6 months, unless the crime relates to the sale of alcohol or tobacco products to minors. Despite this, some local councils have exceeded these powers by using surveillance methods to detect criminal activities that carry small or no prison terms. In the London Borough of Wandsworth, the council used the powers from RIPA to launch three undercover operations into people using a lost or stolen blue badge. Elsewhere in the country, Sandwell Council used it to monitor the physical locations and Facebook accounts of suspects who had allegedly been selling counterfeit Nike trainers worth up to £900. Once identified, the suspects were cautioned but not prosecuted.

It may appear beneficial to have technology which, whilst allowing precise identification of wrongdoers, can also help to deter individuals from committing low level crimes. For years the CPS has been criticised for its handling of cases, particularly due to the high level of wrongful convictions which recently stood at 1,336 between June 2019 and March 2020. Therefore, surveillance activities such as the tracking of social media accounts might aid in preventing miscarriages of justice by gathering information that can lead to the real culprit. However, the misuse of powers under RIPA 2000 presents a breach of the ECHR Article 8 right to a private and family life.

A key issue with the legislation is the fact that there is limited oversight of powers. Moreover, ‘sensitive surveillance activities’ can be authorised by the Home Secretary, rather than through a court order (as in most Common Law jurisdictions). As a result of this, effective scrutiny and accountability is difficult, as a local council could obtain permission to use sensitive surveillance tactics from a cabinet minister. In the landmark case of Halford v United Kingdom 1997, the ECtHR held that any legislation governing lawful covert surveillance should ‘provide some protection to the individual against arbitrary interference with Article 8 rights’. However, recent activities have illustrated that many councils are misusing surveillance powers beyond their scope, thus conflicting with the privacy rights of many residents.

In a time where local services are becoming more digitalized, there are growing concerns over the infringement of the right to privacy. Social media accounts are typically used for pleasure and business, but most new sign-ups are unlikely to be conscious of the state's powers of investigation. The increasing use of surveillance to detect low level criminal activity could potentially lead to judicial review challenges on the grounds of illegality due to the fact that local councils are exceeding the powers granted by RIPA. A 2020 poll revealed that satisfaction with one’s local council stands at 75%. However, it is unclear whether trust and confidence in local councils will be maintained or whether residents will view the snooping actions of their local councils as an unlawful breach of privacy.

Shortly after this infringement was discovered, a Home Office spokesperson has stated that RIPA should not be used to justify directed surveillance for investigations that do not involve criminal investigations. Based on this statement of clarification, there is a possibility that local councils will set a good example by ensuring the protection of the privacy rights of their residents by only invoking surveillance measures when it is lawful and necessary to do so.