Big Brother Watch in the UK has released a report [
PDF] on
Private Investigators: The use of private investigators by councils, public authorities and government departments in the United Kingdom. It comments that
The Protection of Freedoms Act 2012 introduced important safeguards in the use of surveillance powers by local authorities. The requirement of prior judicial authorisation is an important change in the law and one we wholeheartedly support.
However, as this report highlights, the scope of public surveillance using private investigators risks undermining these protections. Of particular concern is the number of cases where private investigators have been commissioned, yet their work deemed to not require RIPA authorisation, even in cases where the explanation provided appears to indicate surveillance was undertaken.
The law in the UK, particularly the Police and Criminal Evidence Act 1984, is broadly drawn to allow evidence to be introduced in court that in other jurisdictions would not be deemed admissible. Contrasted with the fruit of the poisonous tree provisions in the US, and broader protection offered by the Fourth Amendment, UK law risks failing to join up the evidential admissibility process and the regulation of surveillance.
Accordingly, we are seriously concerned there is a gap in UK law emerging around surveillance and the ability of third parties to conduct surveillance operations without proper regulation.
As the cost of advanced surveillance technologies falls, the temptation is for a number of individuals and organisations to take advantage of the covert cameras, hidden recording devices, aerial devices and countless other gadgets that are now available in a growing market. While there are many situations where regulation is not appropriate, it is also essential to maintain legal safeguards to deter the unaccountable and improper use of such technologies.
Equally, as is the risk with private investigators, the arrangement may allow techniques to be used that would require RIPA authorisation, but because
they are conducted by a third party, the commissioning organisation can claim it was unaware of the specific methods employed.
Whether private investigators, individual citizens or unconnected third party organisations, we believe that the law should be revised to ensure that if surveillance is undertaken and the intention is to use the material obtained in legal proceedings, if it has not been undertaken by the police then it should not be admissible if it has not been authorised under RIPA.
Equally, the ongoing lack of custodial sentences for those guilty of an offence under section 55 of the Data Protection Act 1998 remains a serious issue and particularly where private investigators may be gathering information that they are not authorised to do so.
With as many as 10,000 people working as private investigators in the UK, we agree with the Home Affairs Select Committee that the current legal framework is wholly inadequate.
This highlights the ongoing concern that RIPA is not fit for purpose, in failing to deal with evidence and material obtained outside the legislative framework. Equally, the changing nature of surveillance – particularly the ability to search online, through social networks and through semi-public sources of information – further reinforces the need for the law to be reformed to strengthen protection against unwarranted and unauthorised surveillance becoming a frequent occurrence.
Key Findings for the two financial years 2010-11 and 2011-12 are -
- The total amount spent on commissioning external organisations to undertake surveillance is £3,932,804.
- 29 organisations (27 councils, 1 public authorities, 1 government department) commissioned external organisations to undertake surveillance under the provision of RIPA
- 14 organisations (10 councils, 4 public authorities) commissioned external organisations to undertake surveillance not under the provision of RIPA
- 4 organisations (2 councils, 2 public authorities) commissioned other public bodies to undertake surveillance at a cost of £7,6001
- 4 councils (Caerphilly, Dudley, Leicestershire, York) used private investigators to monitor their own staff
- The Department for Transport was the only government department to commission external organisations to undertake surveillance under the provision of RIPA, using G4S and Outforce Corporate Investigation Ltd on 3 occasions at a cost of £53,075.
- The Marine Management Organisation commissioned Direct Flight to conduct surveillance without the provision of RIPA on 1 occasion at a cost of £3,211,550.
- Stafford Borough Council commissioned external organisations to undertake surveillance under the provision of RIPA on 1 occasion at a cost of £142,140.
- Hammersmith and Fulham Council commissioned external organisations to undertake surveillance under the provision of RIPA on 2 occasions at a cost of £136,337.
The operation was carried out over a period spanning more than 12 months
Recommendations are
1 The Regulation of Investigatory Powers Act 2000 is in fundamental need of reform to protect against unauthorised surveillance
Whether acquiring data through social media websites or the use of private investigators undertaking surveillance without appropriate supervision and authorisation, this piece of legislation is in urgent need of fundamental review and reform. As the Joint Committee on the draft Communications Data Bill warned, the “language of RIPA is out of date and should not be used as the basis of new legislation.”
2 The Police and Criminal Evidence Act 1984 should be strengthened to deter unauthorised surveillance by raising the bar about what evidence can be used in legal proceedings
To ensure evidence obtained with the intent of being used in a prosecution or civil claim is only obtained with proper authorisation, the law allowing ‘tarnished’ evidence to be introduced into court should be strengthened, with a clearer threshold ensuring that there is a strong protection against unauthorised surveillance.
3 Provision for private investigator licensing should be strengthened
We wholly agree with the Home Affairs Committee that all private investigators should be licensed or registered. We believe that this should include provision for an offence to be committed if an investigator undertakes activities on behalf of a third party without appropriate legal authorisation under RIPA or other relevant statutes.
The Association of British Investigators have argued that it should be a criminal offence to engage an investigator who is not licensed, and we would agree with this provision.
4 A duty to regulate contracted investigators should be introduced
In order to address the potential conduct of investigators that should fall under RIPA, we believe a new offence should be introduced to allow corporate-level sanctions against an organisation who commission surveillance and in the course of that surveillance activities which should fall under RIPA is carried out without appropriate authorisation. Such corporate liability would mirror the Information Commissioner’s power to pursue action against organisations for failure to adhere to the Data Protection Act 1998.
5 Custodial sentences should be enacted for Section 55 of the Data Protection Act.
We have previously called for the provisions of section 77 of the Criminal Justice and Immigration Act 2008 to be enacted, which would allow custodial sentences to be handed down to those found guilty of an offence under s55 of the Data Protection Act 1998, which covers the unlawful obtaining of personal data.
Where information is collected by individuals, private investigators or otherwise, without proper legal authority we feel it is essential that they can be punished with a custodial sentence.
