Report Of The U.K Chief Serveillanc Commissionor To The PM.1

ANNUAL REPORT
of the Chief Surveillance Commissioner to the Prime Minister and
to Scottish Ministers
for 2012-2013
Chief Surveillance Commissioner:
The Rt. Hon. Sir Christopher Rose
Presented to Parliament pursuant to section 107(3) of the Police Act 1997
Ordered by the House of Commons to be printed on 18th July 2013
Laid before the Scottish Parliament by the Scottish Ministers
July 2013
HC 577 SG/2013/98

1.1. This is my seventh report since taking up my appointment as the Chief Surveillance Commissioner in July 2006 and relates to the period 1st April 2012 to 31st March 2013.
1.2. My statutory responsibilities have not changed; they are to keep under review:
1.2.1. The performance of functions under Part III of the Police Act 1997 (‘PA97’);
1.2.2. Except in relation to the interception of communications and intelligence services, the exercise and performance of the powers and duties conferred or imposed by or under Parts II and III of the Regulation of Investigatory Powers Act 2000 (‘RIPA’); and
1.2.3. The exercise and performance of the powers and duties conferred or imposed by or under the Regulation of Investigatory Powers (Scotland) Act 2000 (‘RIP(S)A’).
1.3. The powers and duties of the Surveillance Commissioners in scrutinising and deciding whether to approve authorisations under PA97 (property interference) and under RIPA and RIP(S)A (intrusive surveillance) have been explained in earlier reports and are publicly available on our website. For reasons explained later in this report, necessary legislation is not yet implemented to enable the Commissioners to give prior approval to some authorisations relating to a law enforcement Covert Human Intelligence Source (CHIS – commonly termed an undercover officer). My Inspectors continue to scrutinise the authorisation of any such undercover officer who has been authorised for an uninterrupted period exceeding 12 months.
1.4. There is a right to appeal against Commissioners’ decisions to me. There have been no appeals lodged during this reporting period.
1.5. In performance of my duty under all three Acts to report annually, I continue to prepare a combined report.
1.6. For the record, I agreed to be the Investigatory Powers Commissioner for the Sovereign Base Areas, Cyprus. The Administration has introduced bespoke legislation. I report separately to the Administrator.

The statistics relating to property interference, intrusive surveillance, directed surveillance and CHIS are set out in Section 4.
2.2. During the reporting period, several law enforcement agencies and many local authorities have adjusted their structures and procedures to make best use of resources in response to tighter fiscal controls. In a small number of cases, I have adjusted my inspection processes to better assess compliance, but in most, I have continued to inspect each collaborating entity separately. As collaborating public authorities now recognise, there is usually more than one way to achieve compliance.
2.3. Towards the end of the reporting period, the Home Office provided me with its proposed response to the recommendation made by Her Majesty’s Chief Inspector of Constabulary in relation to undercover operations. For reasons I explain later in this report, at the time of writing, I have not been able to agree the proposed use of my Commissioners.
2.4. All public authorities have struggled with the use of the Internet for investigations, particularly social network sites. A particular difficulty is the desire of national bodies to apply a doctrinaire approach which invites error if facts specific to each case are ignored or poorly considered.
2.5. In November the enactment of the Protection of Freedoms Act made important amendment to RIPA. I make initial tentative observations in Section 5 but stress that these are preliminary; I will be in a better position to comment next year.
Particular matters relating to the OSC
Reporting to the Prime Minister and Scottish Ministers
3.1. During the reporting period I have not made a report to the Prime Minister or Scottish Ministers about matters relating to the performance of the powers conferred by the Acts.
OSC guidance
3.2. The capability of my office has been reduced to a point where regular and frequent publication of guidance is not possible. Whilst proffering guidance is not a core responsibility my inspectors convey the guidance of the Commissioners during inspection; but uneven delivery is unsatisfactory.
3.3. I understand the desire of the Home Office and ACPO in particular to provide guidance but care is necessary to avoid inaccurate dogma. Likewise I discourage inadequate guidance generated in haste. It is sometimes claimed that there is too much competing guidance; this is can be caused by the search for guidance preferable to osc guidance which may be regarded as inconvenient. Seven Commissioners who have held high judicial office providing a single interpretation of legislation almost unique. I am unlikely to be persuaded by guidance which is contrary to the opinions produced after careful consideration by my Commissioners. I am even less likely to be persuaded by guidance designed for the convenience of practitioners. Continuous assertion of a view by practitioners does not change the law.
Inspection programme
3.4. The public authorities which I currently inspect are at Appendix E. I continue to limit my inspections to those public authorities identified in the relevant Schedules to the Acts but, as I reported last year, the Schedules no longer adequately reflect reality. Many ‘public’ services are now conducted by quasi-public or even private entities most of whom do not fall under my remit. I try to avoid duplicating inspections for entities which contribute to joint working arrangements. However, where novel arrangements merge different but equally compliant structures and processes, it is not my role to decide which should be preferred.
Oversight of local authority authorisations granted by magistrates
3.5. It is too soon to form a view on the impact of those parts of the Protection of Freedoms Act 2012 which relate to the authorisation of covert activity by local authorities. I have not inspected enough local authorities since the Acts enactment to identify discernible change in the number of authorisations granted. I provide tentative observations later in the report but these should not be considered definitive.
3.6. It is not my function to assess the performance of a magistrate or any other judicial authority. If on inspection I find that a magistrate or other judicial authority is presented with an inadequate authorisation I will criticise the local authority, record whether it was approved, and state the total number of inadequacies in my future reports.
Commissioners’ meetings
3.7. The Commissioners met on three occasions during the reporting period.
3.8. The Director General of the Serious and Organised Crime Agency kindly provided
demonstrations and presentations on current capability and emerging technology.
Presentations and conferences
3.9. My Chief Inspector has confined himself to presentations to the College of Policing authorising officer courses. Last year I reported a reduction in the number of these courses and the apparent inability to meet demand. I am happy to correct this misperception; any reduction related to law enforcement focus on the Olympics.
3.10. In March 2013 I opened an ACPO Conference considering two areas: Automated Number Plate Recognition and investigations using Social Network Sites. One theme of my presentation was that guidance about the law emanating uniquely from the consideration of 10 judges should not sensibly be ignored.
Liaison
3.11. My Chief Inspector continues to be my main point of contact with external stakeholders. He continues to support the work of the ACPO RIPA Peer Review Group and is a member of the Home Office Law Enforcement Use of Social Networks Steering Group. He also supports the work of Her Majesty’s Inspector of
Constabulary review of undercover operations. This is important work but I state, as I did last year, that my primary responsibility is to assess compliance and performance independently. If the output of these groups appears to me adversely to affect my ability to perform my statutory function I will say so.
3.12. Home Office requests to the OSC to respond to proposed important changes to legislation are often within an impossibly short timescale for a tiny but dispersed organisation such as the OSC. I try to avoid ill-considered responses.
Home Office support
3.13. The Home Secretary is required by the Police Act 1997 to provide me with the support necessary to fulfil my responsibilities. At the end of this reporting period there is no significant change to the situation I reported last year. Information technology and secure communications facilities remain inadequate and a security waiver has existed for seven years without resolution. My Secretariat is only able to provide rudimentary support and my Chief Inspector is deflected from his core business in order to resolve critical business issues.
Changes in personnel
3.14. His Honour Dr Colin Kolbert retired at the end of April 2013 from his role as an Assistant Surveillance Commissioner. He has given 12 years of outstanding service to the OSC and will be greatly missed. Lee Stephen and Judith Scrivener left during the year. I am very grateful for their contribution to the work of the OSC Secretariat.
3.15. His Honour David Hodson succeeds Dr Kolbert as an Assistant Surveillance Commissioner from 1st May 2013. Mark Ogunjumo came to head the Secretariat in December 2012.
Recognition
3.16. I wish to record, once again, my thanks to the Commissioners, Assistant Commissioners, Inspectors and all other members of the OSC for the indispensable support which they have given me in performing my statutory role. My thanks also go to Lyndon Hughes-Jennett and his team at the Protective Services Division, Northern Ireland and to Graeme Waugh and the staff of the Police Division of the Scottish Government for the important administrative support they provide to the Commissioners in Northern Ireland and Scotland respectively.
Expenditure
3.17. The budget for 2012-13 remained at £1.58 million, with actual expenditure, summarised at Appendix F, £87,000 under budget. I have been allocated £1.63 million for 2013-14 which will apparently take into account an agreed 1% salary increase for Civil Servants. I also acknowledge the Home Office agreement that oversight of undercover operations by the OSC may require additional funds but I am unable to identify resource requirements until the nature and extent of the oversight is identified.
Statistics relating to the use of property interference and covert surveillance
General
4.1. Statistics for property interference and intrusive surveillance authorisations for the past year are set out in tables at Appendices A-D. The chart comparisons show the overall four-year trend for each type of activity as reported to me when I request statistics for this report. I provide my usual reminder that my statistics can only provide a general record; they should not be misconstrued. My role is not to promote more or less covert activity; it is simply to report the performance of those enabled to seek the protection of legislation. I have identified no systemic attempt to misuse legislation.
4.2. The following statistics are based on a 96.2 per cent response from law enforcement agencies and a 86.7 per cent response from other public authorities. Of those non-law enforcement agencies that responded, only 8.7 per cent granted the use of a CHIS (a slight increase on last year) and 48.3 per cent have not granted authorisations of any kind (an 18.3 per cent increase on the previous year). Because I do not inspect every authority each year, I have to rely on the returns provided by public authorities. I am sure that the overall trend indicated in each chart is valid but these statistics do not reveal any covert surveillance which public authorities have chosen not to authorise.
Excluding renewals, property interference authorisations were granted on 2,440 occasions; a decrease of 206 on last year. Three authorisations were quashed by Commissioners.
The number of intrusive authorisations decreased this year from 408 to 362. One authorisation was quashed by a Commissioner.
The urgency provisions allowed by legislation were reportedly used on 976 occasions. My inspectors have not reported misuse of legislation but this is a striking increase the reasons for which are not presently apparent. It is an area to which I will pay particular attention in the next reporting period.
4.6. Law enforcement agencies authorised the use of directed surveillance on 9,515 occasions; 1,188 authorisations were extant at 31st March 2013. This is a reduction on the previous year when the comparable figures were 12,015 and 1,830.
4.7. The returns to me by non-law enforcement agencies show authorised directed surveillance on 5,827 occasions. This continues a downward trend. 3,902 of these were granted by the Department of Works and Pensions (595 extant at 31st March 2013) which authorises the use of directed surveillance conducted on its behalf by many local authorities which may account for the low statistics from other authorities. A total of 142 authorisations were presented to a magistrate for approval; only two were rejected.
4.8. I suspect that the downward trend in the number of law enforcement authorisations reflects better use of reviews to amend the tactics and techniques used. In the early years an over-cautious approach was taken and authorisations were cancelled and new ones granted whenever a new tactic or technique was needed. To avoid unnecessary bureaucracy, my Commissioners published guidance that judicious amendment of an existing authorisation is compliant with RIPA.